Summary: Mrs D complained about physiotherapy provided by an NHS Trust to her husband when he was a patient in hospital. She also complained about the communication relating to discharge planning from two NHS Trusts and the Council. She said the Council failed to investigate her concerns in line with its safeguarding procedures. The Ombudsmen found the two NHS Trusts failed to communicate properly with the complainant but apologised and made improvements. One of the NHS Trust failed to follow up on a community rehabilitation referral and this is likely to have impacted on Mrs D’s husband’s wellbeing. The Council completed a safeguarding investigation but took too long to tell the complaint the outcome. The Council and the NHS Trusts have agreed to the Ombudsmen’s recommendations and will apologise, make acknowledgement payments and issue reminders to their staff to ensure good practice.

The complaint

1. The complainant, who I shall refer to as Mrs D, complains that London Borough of Bromley (the Council), Lewisham & Greenwich NHS Trust (the Trust) and Oxleas NHS Trust (Oxleas Trust) failed to:
• ensure adequate physiotherapy was provided to her husband, Mr D;
• communicate with her properly and consider her preferences when making a best interests decision about where Mr D should go on discharge from hospital; and
• investigate safeguarding concerns relating to Mr D’s placement in a care home she raised in 2018.
2. Mrs D says the alleged faults impacted on Mr D’s wellbeing and his ability to return to the family home. This meant he could not spend as much with his family as he would have liked. She also says she was incorrectly charged for Mr D’s care in the home and this left her out of pocket and caused her avoidable distress.

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The Ombudsmen’s role and powers

3. The Ombudsman investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsman considers whether it has caused injustice or hardship. Local Government Act 1974, sections 26(1) and 26A(1)).
4. 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.
5. 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)
6. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation must make. Therefore, my investigation has focused on the way the Council and the Trust made decisions.
7. The Ombudsmen will consider, in a complaint involving the NHS and the local authority, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and local authority work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.

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How I considered this complaint

8. I have considered information provided by Mrs D and information from the authorities she complains about. I have also considered the law and guidance relevant to this complaint. All parties were given an opportunity to respond to a draft of this decision.

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What I found

Legal and administrative background

9. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary.
10. 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 done, or made, in that person’s best interests.
11. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (Section 42, Care Act 2014)
12. National Institute for Health and Care Excellence (NICE) is the independent organisation responsible for providing national guidance on the promotion of good health and the prevention and treatment of ill health.

NG97 – This guideline covers diagnosing and managing dementia (including Alzheimer’s disease). It aims to improve care by making recommendations on training staff and helping carers to support people living with dementia. This says, “Staff delivering care and support should maximise continuity and consistency of care. Ensure that relevant information is shared and recorded in the person's care and support plan.”

NG27 – This guideline covers the transition between inpatient hospital settings and community or care homes for adults with social care needs. It aims to improve people's experience of admission to, and discharge from, hospital by better coordination of health and social care services.

13. The Care Coordinator is employed by the Council and seconded to Oxleas Trust under contractual agreement in line with Section 31 of the Health Act 1999. The Care Coordinator’s role includes completing mental state assessments, Care Act assessments, reviews of existing care packages and other tasks relevant to the Mental Health needs of an individual.

Background

14. Mr D was diagnosed with dementia and lived in the family home with Mrs D. He received a package of care from the Council for support with continence management, washing and dressing. He also attended a day centre three days weekly. Mr D was dependent on his carers and Mrs D for support with managing his daily living skills. Mrs D said Mr D was independent with his mobility.
15. In March 2018 Mr D went into hospital for haematuria (blood in the urine). During his stay in hospital the Trust assessed he needed to be hoisted for transfers and needed assistance when mobilising.
16. Mr D received clinical support from the Trust’s physiotherapy and occupational therapy departments. Assessments were completed during his admission and the dates are shown in the clinical records. Following further assessment and intervention the Trust decided the safest way to transfer Mr D was by hoist. The clinical notes show fluctuation in Mr D’s ability to stand independently and with the assistance of two people.
17. From April the Trust’s therapists discussed Mr D’s rehabilitation potential with his family. The Trust made a referral for community rehabilitation at a time when it was envisaged Mr D would return to the family home with a package of care. There is no evidence to show it followed up on this referral.
18. The Trust referred Mr D to a service that provided short-term inpatient rehabilitation. The service decided Mr D was unsuitable for short-term inpatient rehabilitation after considering the information provided by the Trust. The service felt he was unlikely to progress within a short period of rehabilitation. There is no evidence in the Trust’s records to show it communicated the outcome of this referral to Mr D’s family at the time.
19. At the end of May a best interests meeting was arranged to discuss Mr D’s discharge arrangements. Mrs D attended the meeting with an advocate together with her daughter and several professionals from the Trust and Oxleas Trust including, the care coordinator employed by the Council. The attendees discussed what equipment Mr D would need on discharge from hospital if he returned to the family home. After further discussion the professionals at the meeting agreed it was in Mr D’s bests interests to go to an interim placement on discharge from hospital rather than return to the family home.
20. Mrs D did not agree with the decision to discharge her husband to an interim placement. This was because she wanted Mr D to return to the family home with support in place. The professionals explained the decision was made because an interim placement was considered a place of safety. The professionals also considered an interim placement would reduce risk of Mr D catching an infection in hospital. It was not possible to arrange homecare and provide the equipment Mr D needed to facilitate a safe discharge.
21. At the beginning of June Mr D was discharged to the interim placement (a nursing home). Mrs D spoke to the hospital discharge coordinator on the day of discharge. She said she was not happy with the discharge arrangements but understood Mr D could not remain in hospital. She accepted Mr D could not come home until equipment and a care provider were in place. Mrs D said she did not want Mr D to stay in the home permanently.

Safeguarding alert while Mr D was in the interim placement

22. While in the nursing home Mrs D made a safeguarding alert to the Council after she noticed bruising on Mr D’s arms. Mrs D reported that a care manager from the nursing home had told her the bruising on Mr D’s arms was caused by an agency worker who had been stopped from working at the nursing home. After considering the allegation the Council decided the threshold to investigate under Safeguarding Adults Section 42 Enquiry had been met for suspected physical abuse.
23. The Council completed a strategy discussion in September. The safeguarding information notes the incident was unwitnessed the nursing home had stated the bruises were caused by an agency worker. The strategy discussion record details the action plan agreed by the Council as part of its investigation. By this time Mr D was no longer resident in the nursing home, and had returned home, so was not considered to be at risk.
24. The Council asked the nursing home to complete a report as part of the investigation. The Council’s safeguarding documents recorded an accident report form being complete and this noted Mr D had knocked his arm while staff were assisting him. The report stated a doctor had visited the home a day after the incident to examine the marks. The doctor noted Mr D had sensitive, dry and fragile skin which was prone to developing bruises, rashes and redness due to thinner blood. The doctor had advised the nursing home to moisturise the affected area daily to help the marks heal.
25. When concluding its investigation on the balance of probabilities the Council decided the outcome of whether physical abuse had occurred was inconclusive. It found it was unclear how the nursing home knew it was the agency worker who had caused the bruising. The Council also questioned whether the agency worker was aware of how to deal with challenging behaviour and whether the agency worker had read Mr D’s care plan and risk assessment chart relating to his needs. The Council told the nursing home that agency workers needed to be directed to care plans of all residents prior to providing care to they understand the best way to support residents. The Council also noted other preventative measures the nursing home had introduced since the incident occurred.

Findings

Physiotherapy provided by the Trust

26. Mrs D said the physiotherapy provided to her husband was inadequate. The Trust’s physiotherapists and occupational therapists had an active role to deliver therapy in line with clinical standards. There is documentary evidence to show a written plan was put in place as part of the clinical care provide. This shows
    Mr D’s occupational therapy and physiotherapy programme.
27. During the hospital stay Mr D progressed from using a hoist to mobilising with the assistance of two people. Clinicians recorded inconsistency with Mr D’s progress and therapy provided did not result in carry-over from previous sessions. At times Mr D was reluctant to engage with therapy sessions and this would have also affected his potential for rehabilitation.
28. There is a noted difference between the standard of care Mrs D expected, and the standard of care provided. This is not unusual when family members want to ensure relatives receive the best care they think is required. The evidence available does not show the Trust’s therapists always communicated with Mrs D and other family members about interventions made. It would have been good practice for the therapists to have done so as this may have provided more reassurance to Mrs D. Despite this omission I do not find fault by the Trust in the clinical care provided to Mr D.
29. The Trust referred Mr D for community rehabilitation when it was thought he would be returning home. Although the best interests decision led to Mr D being charged to an interim placement there is no evidence to show how the Trust followed up on the community rehabilitation referral. There is also no evidence to show how the Trust considered whether community rehabilitation was needed in the interim placement. This is fault.
30. Nice guidelines say, staff should ensure continuity of care for people being transferred from hospital, particularly older people who may be confused or who have dementia.

“The discharge coordinator should ensure that the discharge plan takes account of the person's social and emotional wellbeing, as well as the practicalities of daily living. Include:

• arrangements for continuing social care support
• arrangements for continuing health support

The discharge coordinator should arrange follow‑up care. They should identify practitioners (from primary health, community health, social care, housing and the voluntary sector) and family members who will provide support when the person is discharged and record their details in the discharge plan.”

31. I have not seen evidence to show the discharge coordinator made necessary arrangements for continuing health support relating to rehabilitation such as physiotherapy. It would have been good practice for the Trust to followed up on the referral for community rehabilitation. For example, it could have communicated with Oxleas Trust or the Council about the community referral to ensure continuity of care. In addition, Mr D’s overall need for rehabilitation should have been considered when discharge planning to ensure the relevant authority took responsibility for coordination of specific community rehabilitation services once Mr D was back in the community. On balance, it is a likely, a lack of community rehabilitation would have adversely impacted on his wellbeing.

Communication with Mrs D

32. The evidence available shows there was fault in the way the Trust communicated with Mrs D about the outcome of the referral it made to the inpatient community. As previously, noted the Trust’s therapists did not always communicate with
    Mrs D and other family members about interventions made when providing care to Mr D as an inpatient.
33. The Trust did not share the outcome of the referral it made to the inpatient rehabilitation service. This is fault. When responding to Mrs D’s complaints the Trust apologised for its poor communication relating to the referral to the rehabilitation service. This is a suitable remedy for any injustice caused by this fault.
34. The evidence available shows there was fault in the way Oxleas Trust communicated with Mrs D about the discharge arrangements. For example, when it invited Mrs D and her daughter to the discharge meeting there is no evidence to show it explained this would be a best interest meeting. It is likely Mrs D lost an opportunity to properly prepare for the meeting where it was decided her husband would not be returning home in the interim. This was acknowledged by Oxleas Trust when responding to Mrs D’s complaint. It apologised in writing and said in future it would make sure decisions are explained and recorded properly. It is unlikely the Ombudsmen can achieve any more.
35. Mrs D did not want Mr D to be discharged to an interim placement and her preference was for Mr D to return home with a package of care. However, the evidence available indicates Mr D was not able to return home because of his care needs. Oxleas Trust and the Council initially tried to arrange domiciliary care, but this was not possible or considered appropriate. Nearer the discharge date Mrs D said she understood why Mr D could not return home immediately from hospital. While there is fault in the way Oxleas Trust communicated with Mrs D about the discharge meeting there is evidence to show how Mrs D was involved in the best interests process. Therefore, it is unlikely the outcome would have been any different.

The Council’s safeguarding investigation

36. Mrs D also complained about the way the Council investigated safeguarding allegations she had made when her husband was in the interim placement. The Council provided the documents associated with the safeguarding investigation. This shows the Council investigated the allegations raised by Mrs D in line with the relevant legislation.
37. The Council received notification of the allegation about two weeks after the date the incident occurred in July 2018. However, there was a delay of about six weeks to progress the matter via its safeguarding procedures.
38. The safeguarding alert notes Mr D sustained bruising to his arms and although the incident was unwitnessed the interim placement reported an agency worker was responsible. It is unclear how the interim placement knew this was the case. A doctor visited the placement to examine Mr D after the home identified the bruising. The doctor said the bruising such as that sustained by Mr D can occur when a person had sensitive, fragile and dry skin.
39. Mrs D said her husband was not susceptible to bruising unless handled roughly. She provided photographs to show the bruising. However, Mrs D did not witness the incident so it is not possible on balance to say how the bruising to Mr D occurred.
40. In conclusion the Council could not substantiate the allegations because the agency worker denied causing the bruising and the incident was not witnessed. The interim placement said the agency worker would not return to the home. The Council also told the home to improve its practice when using agency workers. For example, the home needed to ensure all workers were familiar with care plans and behavioural support plans relating to residents. By this date Mr D had already left the home and was no longer at risk of harm.
41. The Council provided an outcome to its investigation to Mrs D in May 2019. It said there were delays but these were due to factors such as the need to transfer the responsibility for the safeguarding enquiry. It said it communicated with Mrs D from about the report for about five months because she questioned the findings and challenged parts of the report. Nevertheless, it still took about 10 months to arrive at its conclusion and this is fault. It is likely Mrs D was caused avoidable distress because of the delay in providing her with an outcome for the allegation she had raised.

Conclusion

42. There were faults in the way the Trust and Oxleas Trust communicated with
    Mrs D about therapy provided and Mr D’s discharge arrangements. The Trust and Oxleas Trust already apologised to Mrs D. The lack of information is likely to have caused Mrs D avoidable frustration and time and trouble in pursuing a complaint. There is no evidence to show how the Trust followed up on community rehabilitation to ensure Mr D received continuity of care when he was discharged from hospital. This is likely to have impacted on Mr D’s wellbeing
43. When responding to the Ombudsmen’s enquiry the Trust confirmed it had rolled out communication training to its occupational therapy teams. It also rolled out dementia training for all junior staff. This is good practice and an improvement.
44. The Council investigated Mrs D’s concerns in line with its safeguarding procedures but there were delays and it took too long to tell her the outcome. When responding to the Ombudsmen the Council acknowledged it delayed.
45. Since this incident Oxleas Trust has reinstated its Head of Social Care Post and it says this provides close links between it and the Council’s departments and staff. Oxleas Trust and the Council will continue to work together to ensure there are clear pathways for cases where there are multiple agencies involved. It is not necessary for the Ombudsmen to make a further service improvement recommendation.

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Agreed Recommendations

46. Within four weeks of the final decision the Ombudsmen recommend:
• the Trust pays Mrs D £200 to acknowledge the impact on her husband’s wellbeing when it failed to follow up on the community rehabilitation referral and any distress caused to her as a result;
• the Council apologises in writing to Mrs D for the distress caused to her by the delays in its safeguarding investigation. It should remind its staff of the importance of timeliness when completing safeguarding investigation and pay Mrs D £100 to acknowledge the frustration and avoidable distress caused;

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Final decision

47. The Council and the NHS Trusts have agreed to the Ombudsmen’s recommendations. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman