Summary: We find no fault in the efforts a Trust, a Council and an ICB made to transfer a woman with dementia from hospital to suitable post-hospital care. The organisations correctly kept the woman’s capacity under review and made proportionate steps to ensure they acted in her best interests.

The complaint

1. Miss A complains about the care and support provided to her and her late mother, Mrs X between 1 July and 28 November 2020 by:

• West Suffolk NHS Foundation Trust (the Trust),
• Suffolk County Council (the Council), and
• NHS Suffolk and North East Essex Integrated Care Board (the ICB), formerly West Suffolk Clinical Commissioning Group (the CCG).

2. Miss A complains that:

• The Early Intervention Team (the EIT) did not provide acceptable care and support for Mrs X at home between 1 and 5 July 2020. In particular, that the EIT did not give medication to Mrs X and there was poor communication.
• Staff from the Trust, the Council and the ICB failed to ensure Mrs X left hospital after deciding it was in her best interests to go to a care home on 4 August 2020. In relation to this, Miss A said staff failed to involve the Court of Protection or take alternative legal action. Miss A also said staff inappropriately accepted the decisions Mrs X made.

3. Miss A said the delays, and overall failure to discharge Mrs X from hospital led to Mrs X contracting Covid. Miss A said Mrs X died a short time later which meant the services involved in Mrs X’s care effectively killed her.
4. Also, Miss A said the events caused her distress and she felt excluded from Mrs X’s clinical and social care and support arrangements.
5. In bringing her complaint to the Ombudsmen Miss A said she would like the organisations complained about to accept fault, apologise and learn lessons to avoid similar mistakes.

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What I have and have not investigated

6. I have investigated Miss A’s complaint about a failure to discharge Mrs X from hospital between 5 July and 28 November 2020.
7. I have not investigated Miss A’s complaint about the EIT. The Trust has apologised if there was inadequate communication about the extent of its role but said it could not provide the level of support to Mrs X which Miss A expected. Specifically, that it could not physically give medication to Mrs X and force her to take it. The Trust said it could only prompt Mrs X to take it.
8. The Trust’s complaint response provides evidence the EIT was aware that one part of its workers’ roles would be to prompt Mrs X with medication. The Trust’s chronology suggests its staff did actively consider what arrangements were in place to help manage Mrs X’s medication. Also, it notes staff asked Mrs X about medication when they visited.
9. As the Trust noted in its response, the EIT support workers would not have been able to force Mrs X to take medication. An investigation by the Ombudsmen would not find fault about this.
10. The Trust’s second response suggested the EIT could have done more to help arrange a pharmacy-supplied Dossett box for Mrs X’s medication. However, there is some evidence to suggest the EIT did ask Mrs X’s GP practice to arrange this. Further, I do not consider it is likely we could say that, even with further work to put a pharmacy-managed Dossett box in place, Mrs X would have taken more medication.
11. Overall, in the context of this having been an emergency service arranged at short notice, it is unlikely an investigation would be able to find significant fault and injustice related to this issue. As such, it would not be a proportionate use of the Ombudsmen’s resources to investigate it.

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The Ombudsmen’s role and powers

12. 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)
13. 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)
14. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify their involvement, or
• it is unlikely they could add to any previous investigation by the bodies.

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

15. When investigating 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.
16. 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))
17. It is the Ombudsmen’s role to consider complaints in relation to the information that was known to the bodies at the relevant time, and not within the benefit of hindsight. A High Court Judge highlighted this principle during a judicial review in 2015. (Paragraphs 38 and 39 of: R (on the application of Rapp) v Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin); Queen's Bench Division, Administrative Court (London))
18. 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

19. I considered Miss A’s written complaint to the Ombudsmen and the complaints she made to the Trust and its responses. I spoke to Miss A on the telephone. I wrote to each of the organisations to explain what I intended to investigate and asked questions and for copies of records. I considered all the information I received in response. I also considered relevant legislation and guidance.
20. I shared a confidential copy of this draft decision with Miss A and all the organisations and invited their comments on it. I considered all the comments I received in response.

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What I found

Legislation and guidance

Hospital discharge during the Covid pandemic

21. 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).
22. 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).
23. The Discharge Policy noted that organisations’ duties under the Mental Capacity Act 2005 (the MCA) still applied. It said: “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).

The Mental Capacity Act 2005

24. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The MCA (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.

Mental capacity assessment

25. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. Professionals must assess someone’s ability to make a decision when that person’s capacity is in doubt. How they assess capacity may vary depending on the complexity of the decision.
26. An assessment of someone’s capacity is specific to the decision to be made at a particular time. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
27. 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

28. A key principle of the MCA 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the MCA provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
29. 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.

Court of Protection

30. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
31. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

Lasting Power of Attorney

32. A Lasting Power of Attorney (LPA) is a legal document which allows a person (‘the donor’) to choose one or more persons to make decisions for them when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
33. There are two types of LPA. A Health and Welfare LPA this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Events

34. Mrs X had dementia. Before July 2020 She lived at home with her daughter, Miss A, in a house they jointly owned. Miss A cared for Mrs X and was registered as a Health and Welfare LPA for Mrs X. Mrs X’s behaviour was, at times, aggressive toward Miss A. Miss A left their home at the end of June 2020 because of this. The Council arranged for Mrs X to receive three visits from care staff a day, in Miss A’s absence.
35. On 5 July 2020, the police took Mrs X to the Emergency Department after neighbours raised concerns about Mrs X’s welfare. Mrs X did not have any acute medical problems that needed treatment in hospital; the admission was purely a ‘social’ one. The Trust began planning her discharge from hospital the same day.
36. Two attempts were made to discharge Mrs X in July, and two further attempts were made in September. All were unsuccessful as Mrs X refused to leave her bedside. Mrs X remained in hospital until November when she contracted Covid and sadly died.

Analysis

37. Mrs X did not need to be in hospital for acute medical treatment. Doctors understood this straight away and no one disputes this. In line with the Discharge Policy, the Trust began planning Mrs X’s discharge the day she went into hospital. This was appropriate.
38. Professionals assessed Mrs X’s capacity to decide where she should live after she left hospital ten times while she was an inpatient. On the day of her admission, and around a week later, assessments found she did have the capacity to make this choice. However, the rest of the assessments – completed in July, August, September and October – determined that she did not. It was right for the Trust to keep this under review and to reassess Mrs X. Looking at this in the round, for most of the time professionals found Mrs X did not have the capacity to decide where she should live after she left hospital.
39. As such, someone needed to decide what was in Mrs X’s best interests. Mrs X was consistent in stating that she wanted to go home, and professionals noted this and explored how feasible it would be. Miss A also recognised this was what Mrs X wanted. Miss A also noted concerns that Mrs X needed support at home and would not accept it. Miss A and professionals also understood the home situation was a difficult and complex one, with the police having advised against Mrs X returning to live there. The records show that, after consideration, Miss A and professionals both had concerns that it would not be realistic and safe for Mrs X to come home. Professionals noted that, while Mrs X was clear about wanting to come home, she did not have good insight about the amount of support she needed. Because of this they had concerns she would not accept support at home and her needs would go unmet and she would be at risk of harm.
40. Professionals first made a Best Interest decision about where to transfer Mrs X without Miss A’s involvement, a day after Mrs X went into hospital. As a Health and Welfare LPA for Mrs X, the Trust should have included Miss A in this discussion. However, the decision the professionals made (which I will come to in the next paragraph) was in line with Miss A’s wishes (as told to staff early in Mrs X’s admission). Therefore, this oversight did not have a harmful impact. Throughout Mrs X’s admission various professionals occasionally raised concerns about whether Miss A could properly represent Mrs X’s best interests. This was because of the complex home situation which, in turn, meant Miss A had to consider her own safety and wellbeing alongside Mrs X’s needs. These professional concerns were never put to the Office of the Public Guardian or the Court of Protection. All professionals continued to accept that Miss A was the ‘decision maker’ for Mrs X. It was appropriate for professionals to consider this issue and to think critically about how to ensure Mrs X’s interests were properly and fairly represented. At one stage the Trust arranged for an Independent Mental Capacity Advocate to represent Mrs X at a Best Interest meeting. This was reasonable and provides evidence that the professionals were committed to properly establishing Mrs X’s best interests.
41. At the first Best Interest meeting (which Miss A was not involved in) the professionals decided it would be best for Mrs X to go from hospital to a residential home for a short-term placement. (As noted above, this is also what Miss A felt would be best for Mrs X.) Following this decision the Council commissioned a care home without any delay. The hospital attempted to discharge Mrs X to a care home the following day but she refused to leave. The records provide evidence that staff made proportionate efforts to persuade Mrs X to leave. As such, the failure to discharge Mrs X at this point was not due to any fault by the organisations.
42. After this failed discharge the Trust arranged further capacity assessments and for mental health professionals to review Mrs X. The Trust then continued with the plan to discharge Mrs X to a care home. The time spent reassessing and reviewing Mrs X during this period was reasonable as this was a complex situation. It was appropriate to check her capacity again, as this can change. It was also understandable the Trust wanted to check whether mental health professionals might have been able to offer any insight or assistance to the situation. In the event the mental health professionals did not find any need for them to remain involved.
43. Following these reviews the Trust made a second attempt to discharge Mrs X in the middle of July. Again, Mrs X refused to go. As with the first attempt, there is no evidence to show this was unsuccessful because of any fault by the Trust. Mrs X was clear she did not want to go to a care home and staff could not force her.
44. Following these failed attempts the Trust decided to arrange another Best Interests meeting. Given Mrs X’s evident level of objection to the plan to transfer her to a care home, this was a reasonable and understandable decision.
45. The Trust planned for the meeting to include a range of professionals along with Miss A. Two meetings were attempted in late July with Miss A attending via phone on both occasions. Both meetings ended without a decision because Miss A hung up.
46. Another meeting took place in early August, again involving Miss A, as well as an Independent Mental Capacity Advocate. All present agreed it would be in Mrs X’s best interests to go to a temporary placement to enable an assessment of her longer‑term needs. It had taken just over two weeks to make this decision from the second failed discharge attempt. This was reasonable in the circumstances of this case.
47. Mrs X did not remain in hospital because there was a failure to decide what was in her best interests. It was appropriate that professionals explored this, and that the decision was re-visited. However, ultimately, this was not what caused Mrs X to remain in hospital.
48. Following the decision on 4 August professionals started looking for a suitable placement which could meet Mrs X’s needs and had space to take her. It took some time to find a placement, but this was out of the organisations’ hands. Toward the end of August the hospital referred Mrs X to the CCG (as it was at the time) and asked it to arrange and fund a placement for her under the Discharge Policy. On 1 September a care home advised the CCG it would be able to take Mrs X from 14 September. Before 14 September the CCG approved funding for this placement, including funding for three weeks of one-to-one support. There were no unreasonable delays in the CCG making these arrangements.
49. As such, Mrs X did not remain in hospital because the relevant funding authorities (initially the Council and then the CCG) failed to commission suitable care for her. The Council and then the CCG needed to wait for a best interests decision. After the decision on 4 August the funding authorities did what was asked of them.
50. Mrs X remained in hospital because staff were unable to persuade her to leave the ward and get in transport to take her to a care home. They attempted to do so – using a detailed discharge plan – on two consecutive days in the middle of September. The Trust used several members of staff, including staff who had a good rapport with Mrs X. They also spent time with Mrs X trying to persuade her, and used a prescribed medication in an attempt to reduce her agitation. The Trust had created a detailed plan which included proportionate steps to try to dscharge Mrs X, and it followed it. Therefore, these further unsuccessful attempts to discharge Mrs X were not due to fault. As with the first two attempts, Mrs X remained adamant that she would not leave hospital to go to a care home.
51. NHS and social care professionals cannot physically restrain or sedate people for the purpose of moving them out of hospital without the proper authority. This is set out in section 4A of the MCA. Deprivation of Liberty Safeguards (DoLS) can give professionals the authorisation to restrict a person’s liberty if it is in their best interests and there no other less restrictive options. However, DoLS only apply for people who are being cared for in hospital or a care home, but not for journeys between the two.
52. To legally be allowed to physically or chemically restrain Mrs X the hospital would have needed to apply to the Court of Protection for a personal welfare order. Only the Court of Protection could have given professionals authority to restrain Mrs X to move her from hospital to a care home.
53. Before granting an order the Court of Protection would need to be satisfied that all less restrictive options had been attempted and failed before agreeing to restrict the person’s liberty. As such, it would have been premature to have applied to the Court of Protection before attempting to discharge Mrs X in the middle of September. It is highly likely that, had the Trust done so, the Court would have asked it to make further attempts to discharge Mrs X without its intervention. It would want to know, in detail, what had already been tried.
54. After the failed attempts in September the Trust began getting advice from its solicitors about how to apply to the Court of Protection. Various professionals had earlier anticipated the potential need to do this, from late July and in August and September. This anticipation of the need to get authorisation shows staff were aware of the legal framework.
55. As the Trust sought advice from its solicitors, the CCG also asked the Trust to assess Mrs X’s capacity again and to arrange a new best interests decision. In the context of Mrs X’s continued clear opposition to going to a care home it was reasonable and proportionate to ask for this. The question of where Mrs X should go to when she left hospital was not a minor decision to take. It warranted detailed, careful deliberation and it was appropriate to keep the decision under review as time moved on.
56. In the interim – while waiting for a new best interest decision – the CCG continued to work on the basis that Mrs X would need a care home placement and made relevant enquiries with possible care homes. It also made it clear that it was committed to funding whatever care was necessary to meet Mrs X’s needs and to maintain her safety. This was a reasonable approach.
57. Throughout this period – while waiting for a further best interests decision – the Trust continued to note its intention to approach the Court of Protection to help facilitate Mrs X’s transfer. It noted it would not make the application until there was a definite discharge plan in place. This was appropriate. It could not discount that a new best interest meeting could lead to a plan which Mrs X would be less opposed. This, in turn, may have meant it would not need to restrain her. Further, it is highly likely the Court would want details of a specific plan it was being asked to approve. This would include details of the specific location Mrs X would go to, how long it would take to get there and what would happen when she arrived. It would also need to be reassured that Mrs X’s best interests had been properly, and recently, considered. Because of this I have not found fault in the Trust’s decision to hold off from approaching the Court of Protection. There are understandable reasons why it did so.
58. During September staff from the Trust discussed Mrs X’s situation and plans for her discharge with Miss A. There is evidence to show Miss A was resistant to engaging in conversations about this, and about agreeing to another meeting. The next Best Interests meeting did not take place until 5 November, over a month‑and‑a‑half after the previous attempt to discharge Mrs X. However, from the available evidence, the Trust had made appropriate and proportionate efforts to arrange this meeting and progress the case. As such, this delay was not due to fault by the Trust, the Council or the ICB.
59. At the meeting the professionals continued to accept that Miss A was the decision maker. They respected her wish to take more time – and to get her own advice – before she made a decision. The meeting did not result in a decision. Records from later in November show professionals from the Trust and the CCG continued to wait for confirmation of the decision before taking steps to attempt to progress the case. However, Mrs X sadly died before any the Trust attempted to discharge her again.
60. Overall, it was clearly unsatisfactory for all concerned that Mrs X, who had no medical need to be in hospital, remained there for over four-and-a-half months. However, for the reasons explained above, I have not found fault in the actions of the Trust, the Council or the ICB. The evidence shows they acted in line with the relevant legislation and policies.

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Decision

61. I have completed this investigation on the basis there was no fault by the Council, the Trust or the ICB.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman