The Ombudsman's final decision:
Summary: The Ombudsmen found no fault with an NHS Trust about its decision to discharge an elderly man on two separate occasions. The Ombudsmen has not found fault with another NHS Trust’s care at an integrated care unit. There was fault with a medication list sent with the patient on discharge, but the NHS Trust has already remedied this. The Ombudsmen found no fault with a Council’s decision to arrange a placement in a residential care home, but there was fault with the Council’s communication about care home fees. The Ombudsmen recommended actions for the Council to remedy the distress caused by the fault and improve its service.
- Ms T complains about the care provided to her father, Mr W, by Brighton and Sussex University Hospitals NHS Trust (the Hospital Trust), Sussex Community NHS Trust (the Community Trust) and East Sussex County Council (the Council). In particular Ms T complains that:
- The Hospital Trust’s discharge of Mr W to his own home on 14 October 2016 was flawed.
- The Hospital Trust’s discharge of Mr W to Lewes Intermediate Care Unit (LICU) on 27 October 2016 was inappropriate/too soon.
- The Community Trust’s medical treatment at LICU was poor.
- The Community Trust and the Council had a lack of understanding of Funded Nursing Contributions (FNC) eligibility resulting in a flawed Continuing Healthcare (CHC) checklist and no formal decision on Mr W’s FNC eligibility.
- The Community Trust discharged Mr W from LICU on 22 December 2016 to a residential rather than nursing care placement, without appropriate pain medication, and without agreement of nursing needs.
- There was poor communication by all three organisations about Mr W’s care planning, FNC eligibility, costs of residential care and complaint handling.
- The flawed hospital discharge on 14 October 2016 and readmission a few hours later caused Mr W inconvenience and distress.
- Inappropriate discharges to LICU and to a residential care placement meant Mr W suffered unnecessary pain and distress at the end of his life.
- The placements in LICU and a residential care bed put Mr W at an increased risk of falls.
- The Council’s poor communication led to the care provider sending her an invoice for around £500 for the ‘client contribution’ to Mr W’s residential care placement.
- Poor communication by all three organisations caused her distress at an already difficult time and has put her to unnecessary time and trouble.
- The organisations to acknowledge the faults and make service improvements.
- The Council to resolve the invoice the care provider sent to her.
The Ombudsmen’s role and powers
- 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.
- 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
- In reaching this decision, I took account of the information Ms T provided to the Ombudsmen. I made enquiries of the Council, the Hospital Trust and the Community Trust and took account of the documents and comments they provided, including relevant medical and care records for Mr W. I also received clinical advice from a Consultant in Medicine for the Elderly.
What I found
- The NHS published a ‘Guide to reducing long hospital stays’ in June 2018. Although this was not available at the time of the events complained about, the principles remain the same. The guidance summarises multiple evidence based publications highlighting the risks of hospital stays for older people. It explains that unnecessarily prolonged stays in hospital are bade for patients. This is due to the risk of unnecessary waiting, sleep deprivation, increased risk of falls and fracture, prolonging episodes of acute confusion and catching health care associated infections. All can cause an avoidable loss of muscle strength leading to greater physical dependency (commonly referred to as deconditioning).
British National Formulary
- The British National Formulary (BNF) is an independent reference guide used by health professionals for advice on prescribing medication.
- BuTrans Patches are opioid pain medication used for around-the-clock treatment of moderate to severe pain. A common side-effect of BuTrans patches listed in the patient information leaflet and the BNF is tremor (shaking).
- CHC is a package of care the NHS arranges and funds where it assesses a person as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST).
- In a hospital setting, the Checklist should be completed when the individual’s needs on discharge are clear.
Funded Nursing Care
- The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs. This includes the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
Charging for permanent residential care
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When a council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
- The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
- Section 14(7) of the Care Act says councils cannot charge for services if a person’s income falls below the personal expenses allowance. This is set at £24.40 each week.
- Mr W was admitted to hospital on 11 October 2016. He reported severe back pain and abdominal pain over the previous two days. A CT scan showed Mr W had an abnormality in his liver. Mr W had a history of spinal stenosis (narrowing of the spaces within the spine). The consultants in elderly medicine had a working diagnosis of pain secondary to urinary retention and constipation, with a background of spinal disease.
- The Trust said by 14 October, Mr W’s had passed urine and opened his bowels. His pain had appeared settled for 48 hours and the doctors therefore felt he was ready to return home.
- Mr W was readmitted to hospital on 15 October 2016 with worsening back pain and decreased mobility. He underwent a number of tests and received pain relief. The records show by 25 October Mr W said he was not in pain and he was not asking for ‘as required’ pain relief that he had been previously. The hospital discharged Mr W to an Intermediate Care Unit on 27 October 2016.
- The records from the Intermediate Care Unit show the staff had no concerns with Mr W’s mobility or continence. Records also show Mr W was independent with night needs and use of a urinal.
- The Community Trust completed a CHC checklist for Mr W on 10 November. This did not meet the criteria for a full assessment. However, Mr W did meet the eligibility for FNC due to his nursing and health needs.
- Records show Ms T and the Council exchanged a lot of correspondence about Mr W’s assessment and care options. Ms T did not agree with the assessment outcome and felt Mr W needed a nursing home placement. The Council were concerned a nursing home placements would not meet Mr W’s needs for social stimuli. It explained to Ms T that a nursing home placement would be more expensive and result in considerable top up fees (around £800).
- As the disagreement was delaying Mr W’s discharge, the Council suggested a meeting with Ms T and health professionals on 16 December. Ms T said she was happy to meet but she wanted an advocate present. However, her advocate was not available until January 2017.
- On 16 December the Council sent Ms T a list of options for care home placements. This included a care home, which was duel registered (as a residential care home and nursing home). It said rooms were available at Local Authority rates, but included no further information about fees.
- Ms T visited the care home on 19 December. The care home then assessed Mr W the following day and offered him a placement. The Community Trust discharged Mr W to the care home on 22 December.
- In January 2017 Mr W’s health deteriorated and the care home sent a CHC checklist to the CCG. However, the CHC assessment was not completed before Mr W died, on 19 January.
- In August 2017 the care home sent an invoice to Ms T for her father’s care home fees.
Discharge – 14 October 2016
- Ms T complains about the Hospital Trust’s decision to discharge Mr W home from hospital on 14 October 2016. She says flaws in the Hospital Trust’s discharge planning resulted in Mr W being readmitted to hospital eight hours later.
- The records show in the two days after his admission, Mr W’s pain was controlled and he had opened his bowels. He had a catheter removed on 14 October and reported to the doctors that he ‘felt well’. Records show he was independently mobile and he had passed urine.
- The records show Mr W had appropriate tests to rule out life threatening or serious new causes for his acute pain. Mr W was therefore “medically fit for discharge” so there was no clinical reason for him to remain in hospital. Additionally it would not have been good practice for the Hospital Trust to prolong Mr W’s hospital stay longer than necessary due to the associated risks. I have therefore found no fault by the Hospital Trust in discharging Mr W home on 14 October.
- There is no indication the Hospital Trust could have predicted Mr W’s readmission the following day based on his presentation. His severe back/abdominal pain had settled. The records also show Mr W said he felt well, had no urinary discomfort and was happy with the discharge plan.
Discharge – 27 October 2016
- Ms T complains the Hospital Trust decided to discharge Mr W to LICU too soon.
- The records show Mr W was readmitted to hospital on 15 October with constipation and urinary retention. It is recorded Mr W was complaining of back pain and he was started on antibiotics for a urinary tract infection. The records show the consultant expected Mr W to be discharged in about 48-hours. The records suggest he was medically fit for discharge from 18 October. Mr W remained in hospital due to his family’s concern about his ability to manage independently at home and the need for rehabilitation to improve his mobility.
- The records show Mr W was making progress with physiotherapy on the ward. Chronic pain and heart failure were long term conditions for which most patients are managed in the community. As Mr W needed rehabilitation and did not have acute medical needs, discharge to an Intermediate Care Unit was appropriate. There was no reason Mr W’s discharge to LICU should have been delayed. I therefore find no fault by the Hospital Trust.
Treatment at the Intermediate Care Unit
- Ms T complains about poor medical treatment at LICU by the Community Trust. She said staff were reluctant to give Oramorph as prescribed and nursing staff had a lack of knowledge of heart failure and chronic disease management. Ms T also complained the Community Trust reduced Mr W’s BuTrans dose.
- The records show staff at LICU asked Mr W about his pain levels regularly throughout his admission. When Mr W complained of pain, the records show care staff reported this and the medical staff gave him pain relief. The medication charts confirm Mr W received Oromorph in combination with other analgesia. The records do not show Mr W had any prolonged periods of uncontrolled pain and there is no indication the Community Trust refused Mr W adequate medication when he reported being in pain.
- The records show Mr W complained of shaking on 2 November. A doctor reviewed him and reduced the BuTrans patch dose. It was clinically reasonable to try reducing the dose of the BuTrans patch given that tremor is a known common side effect. In addition, the doctors started Mr W on alternative pain medication (Gabapentin) which may have reduced his need for opiates to control his pain. The doctor also added lidocaine patches (another type of pain relief medication) when he reduced the BuTrans and was clearly mindful of not wanting to leave Mr W with increased pain. The records do not indicate Mr W’s pain was not controlled effectively after this time.
- The Community Trust’s complaint response to Ms T explained that comments from staff not appearing to understand about management of heart failure or chronic disease management were likely to have been health care assistants. It assured Ms T that nursing and medical staff its staff had relevant experience and explained that the majority of patients in LICU have complex chronic conditions. I have seen no evidence that staff did not have knowledge of how to manage chronic conditions. As noted above, the records show effective management of Mr W’s pain medication. There is no indication Mr W suffered any harm or injustice due to staff not having knowledge of his care or management. I have therefore found no fault by the Community Trust in this regard.
- Ms T complains that a lack of understanding of FNC eligibility by Mr W’s social worker and LICU staff resulted in a flawed CHC checklist and no formal decision on FNC eligibility.
- Records show the Community Trust completed a CHC checklist on 10 November 2016. This showed Mr W did not qualify for a full CHC assessment, but he was eligible for FNC if the Council placed him in a nursing home.
- The records show by late October 2016 the Council and the Community Trust were planning Mr W’s discharge. Mr W’s expressed concerns about being able to safely care for him at home. The Community Trust made a referral to the Council to assess him for a care home. The CHC checklist was completed at an appropriate stage of the admission while discharge planning was underway. The checklist reflects what is recorded in the medical records about Mr W’s presentation. This showed Mr W did not meet the criteria for a full CHC assessment, which Ms T has not disputed. The Community Trust completed the CHC checklist in line with the National Framework and Checklist Tool. It is the for the CCG to determine eligibility for FNC. I have seen no indication staff at LICU’s understanding of FNC or the CHC assessment process affected completion of the CHC checklist. I have therefore found no fault in this regard.
- However, I note Mr W’s social worker incorrectly told Mr W’s family he did not qualify for FNC. I can see how this would cause confusion and lead the family to question whether those involved understood the process adequately and if the correct process was followed. The Council has already acknowledged this fault and apologised to Ms T for the confusion caused. It also discussed Ms T’s complaint with the social worker to ensure they were fully aware of FNC eligibility so they could provide clear information in future. In addition, the Council has confirmed to the Ombudsmen it has reminded its staff of the importance of confirming someone’s FNC eligibility with the CHC team before informing individuals and/or their families. I consider this is an appropriate response to the complaint raised and provides a proportionate remedy to Ms T.
Discharge from Intermediate Care Unit
- Ms T complains that the discharge from LICU on 22 December 2016 was flawed. She says Mr W should have been discharged to a residential rather than a nursing care placement. She also said Mr W was discharged from LICU without appropriate pain medication and without agreement of nursing needs.
- The records show the Council started its assessment of Mr W’s needs in November 2016. It met with Mr W, his family and LICU staff to discuss his needs. The assessment considered Mr W’s health and social care needs in detail. In particular, his health issues were noted, including information from Mr W’s cardiac nurse. There is evidence of extensive contact between the Council and Ms T during the assessment process. The records also show the Council discussed Mr W’s heart failure with clinical and occupational therapy staff at LICU. They advised this did not mean Mr W needed nursing care and his care could be managed in any community setting.
- The Council shared the needs assessment with Ms T on 16 December. The records show she did not consider it reflected Mr W’s need for monitoring by trained professionals to maintain his health.
- The records show the Council acknowledged Ms T’s wishes for a nursing placement for Mr W. However, based on its assessment, it felt Mr W’s needs could be managed in a residential care setting that could also support any nursing needs that developed over time. The assessment considered all of Mr W’s needs in accordance with the Care Act. Importantly, this included input from health professionals, which did not identify any specific needs that needed a nursing placement. I have therefore not found fault with the assessment completed as part of the discharge planning that and determined a residential placement could meet Mr W’s needs.
- With regards to the medication, the records confirm Oramorph not on the medication list sent with Mr W on discharge. However, the Community Trust has already acknowledged this fault in its complaint response and apologised to Ms T. The records show the Community Trust gave Mr W Oramorph for the journey to the care home. The discharge nurse said she contacted the care home when she noted this omission and a prescription was requested. There is no record of this contact, however, there is no evidence Mr W suffered an injustice from the omission. Additionally, if he had any breakthrough pain after he moved to the care home, the GP could have arranged for additional pain medication to be given. I am therefore satisfied the acknowledgement and apology for the omission is an appropriate and proportionate response to this issue.
- Ms T complains there was poor communication by all three organisations about Mr W’s care planning, FNC eligibility, costs of residential care and complaint handling. She says Mr W’s social worker told her she was “stuck in her ways”, that she had to consider it was Government money being spent and that it was her decision to have Mr W live with her five years previous. Ms T complains staff at LICU hid Mr W’s records from her and would not let her view them, even though Mr W had given his permission for her to look at them. Additionally, Ms T says the Council never told her or Mr W about having to pay client contributions until an invoice was received six months after Mr W died.
- The Community Trust’s complaint response explained that patient notes are private and confidential. It said staff had noted concerns about Ms T reading and taking photographs of the records. Ms T disputes taking photographs, but she does admit to reading the notes with her father’s permission.
- The Community Trust said it did not receive a request from Ms T to view the records. However, it said that on reflection, its staff should have asked her if she wanted to view the records with a staff member to support her and answer any queries, as long as Mr W was happy with this.
- The Community Trust also recognised the importance of how it communicates information or asks questions to families. It said its staff did not intend to cause Ms T anxiety or distress and apologised if they had not shown compassion. The Community Trust said it has shared the concerns Ms T raised with the team to reflect on. Although the Community Trust has accepted some fault with communication, I consider the apologies and actions it has taken to be appropriate and proportionate to address this.
- The Council also said it was not its intention to cause offence with anything its staff said. The Council said the social worker did not recall saying the things Ms T complained about, but apologised if they expressed anything insensitively. The Council said it did not intend to cause Ms T any distress. There is a clear difference of opinion and it is evident the discussions about care home choices were difficult. The records appear to show the social worker was trying to find the best solution that met Mr W’s assessed needs. The records show Ms T did not agree with this, but I have not seen evidence that shows the social worker’s actions were unprofessional. I have therefore not found fault in this regard.
- With regards to communication about care home fees, the Council said it told Ms T about fees payable in December 2016. This was an email the social worker sent to Ms T. This included a table of rates for residential placements and nursing placements at a particular care home Ms T had enquired about. The table included £130.70 and is described as “Client Cont*”. It is not explained what “Client Cont*” is or what the asterisk signifies. Even if Ms T had understood this to be contributions Mr W or his family would need to make, the Council did not make it clear this would apply to any other placements considered. I have seen no evidence the Council discussed the client contributions with Mr W or Ms T in any further correspondence with Ms T about possible placements for Mr W.
- There is no evidence the Council explicitly discussed or set out the charges that may apply to Mr W’s placement at the care home (subject to financial assessment) with Ms T. This is fault. However, the fees payable for residential care placements are set out in statutory guidance and therefore would still apply. Although Ms T says Mr W’s assets were below the threshold, income is also taken account, subject to leaving him with the minimum personal expenses allowance.
- The Council charged a standard minimum amount of £155.60, less the personal expenses allowance until it completed a financial assessment. There was no financial assessment because Mr W died before the Council completed this. However, it has confirmed to the Ombudsmen that Mr W’s income (State pension and high rate attendance allowance) was above the standard minimum. Therefore on the face of it, Mr W was liable to pay towards his care home placement.
- As the Council did not complete a financial assessment, we cannot say exactly how much Mr W should have contributed. However, the client contribution the Council charged for was only for the minimum amount until the assessment was done. Mr W was also left with more than the personal expenses allowance each week. It therefore does not appear Mr W suffered any financial loss. I do not consider there would be any benefit in the Council retrospectively completing a financial assessment, but the outstanding fees are still payable by Mr W’s estate. While there is no financial injustice to Ms T, or Mr W’s estate, it is clear faults with the Council’s communication caused Ms T distress. Additionally, Ms T has spent considerable time and trouble having to pursue the complaint to get explanations about the charges.
- The Council has agree that within one month of the date of the Ombudsmen’s final decision, it will:
- Apologise to Ms T for the distress caused to her by the lack of clear communication about care home charges and contributions.
- Pay Ms T £150 in recognition of the distress caused by the faults and the time and trouble of pursuing her concerns.
- Take steps to ensure communication about care home costs and client contributions in particular, is improved. The Council will write to Ms T and the Ombudsmen to explain what steps it will take (or has already taken) in this regard.
- I found no fault by the Hospital Trust in relation to its decision to discharge Mr W home on 14 October 2016.
- I found no fault with the Hospital Trust’s decision to discharge Mr W to LICU on 27 October 2016.
- I did not find fault by the Community Trust in relation to its treatment at LICU or with its completion of a CHC Checklist.
- I did not find fault with the Community Trust’s decision to discharge planning.
- There was fault with the Community Trust’s omission of medication from the discharge sheet, but this has already been acknowledged and any injustice remedied.
- There was fault by the Council in relation to its communication about Mr W’s eligibility for FNC. This has been acknowledged by the Council already and it has taken appropriate steps to put this right.
- I found the Council was not at fault in its assessment of Mr W and placement in a residential care home.
- I found with the Council’s communication about care fees. However, there was no financial injustice as Mr W was charged the minimum amount, leaving him with more than the personal expenses allowance. I have recommended the Council apologies for the distress caused to Ms T from the lack of clear communication and take action to improve communication in future cases.
- Subject to further comments by Ms T and the organisations complained about, I intend to complete my investigation.
Investigator's decision on behalf of the Ombudsman