The Ombudsman's final decision:
Summary: The Ombudsmen have not found fault by a Council or an NHS Trust about their assessment or decision to discontinue parts of a reablement care package because the individual was unable to participate due to her dementia at that time. We have also not found fault with either organisation’s complaint handling.
- Mr B complains about the assessment of his grandmother, Mrs D, when she was discharged, for a second time, from hospital in August 2019. Southwark Council (the Council) and Guy’s and St Thomas’ NHS Foundation Trust (the Trust) were jointly responsible for the assessment and intermediate care following her hospital discharge. In particular, Mr B complains the Council and the Trust failed to take into account the fluctuating nature of Mrs D’s hypoactive delirium. He says this meant she did not receive the care and support needed, including physiotherapy, and left her ‘a prisoner in her own home’. He says the family had to arrange private physiotherapy for Mrs D.
- Mr B wants the cost of the private physiotherapy reimbursed. He wants the Council and the Trust to provide a sincere and comprehensive apology, including an explanation of how they intend to put things right. He also wants a financial payment to recognise the distress caused to Mrs D and her entire family by the faults with the assessments and other parts of the process (including their complaints).
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
- I have considered information provided by Mr B as well as information from the Trust and the Council, including Mrs D’s relevant medical and social care records. I have also considered relevant regulations and guidance relating to the issues complained about. All parties have seen a draft of this decision and I have considered Mr B’s comments.
What I found
Legal and administrative context
- Reablement is a community based short-term service which offers intensive support in the person’s home. Reablement helps individuals regain skills, confidence, and independence around their daily living skills, community access, and integration. Reablement service users have a social care need and support services are usually provided for up to six weeks. If necessary, the initial Reablement period after discharge from hospital can be used to ensure that an assessment is completed and any further services are arranged.
In this case, the Council and the Trust provide reablement care jointly as part of the integrated Intermediate Care Southwark service. Assessments and care planning are carried out by whichever professional can best assess the person’s needs based on the information provided at referral. The multidisciplinary process is used to gain a holistic assessment of an individual's need.
Care needs assessment
- 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.
- A local authority may carry out a needs assessment jointly with another body carrying out any other assessment in relation to the person concerned, provided that person agrees. In doing so, the authority may integrate or align assessment processes to better fit around the needs of the individual. An integrated approach may involve working together with relevant professionals on a single assessment. (Care and Support Statutory Guidance 2014)
Mental Capacity Act
- 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. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
Best Interest decisions
- 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. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
- If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might be asked to decide what is in the person’s best interests.
- Under The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the ‘Complaints Regulations’) there is a duty to investigate complaints properly and in a way that will resolve them efficiently. There is also a duty to cooperate when a complaint is made to one organisation and contains material relevant to the other.
- Section 9 is about complaints that concerns more than one responsible body. It states that, in these circumstances, the responsible bodies must co-operate in handling the complaint. This includes duties to: establish who will lead the process; share relevant information; and provide the complainant with a coordinated response.
- The Council’s own complaint policy sets out how it handles complaints. Complaints should be responded to within 20 working days. If a complainant is not happy with the initial response, they can ask for an internal review by a complaint manager. If the complainant remains dissatisfied an Assistant Director can review the complaint.
- Mrs D is an elderly woman with a diagnosis of dementia. In July 2019 she had a period of reablement following a hospital admission. The aim of the reablement was to help her complete transfers from bed and to a chair. However, the Reablement Team recorded she could not take part in therapy. She returned to hospital three days later.
- The hospital discharged Mrs D again in August 2019 and referred her to the reablement team.
- The Rehabilitation and Reablement Team visited her five times, but they recorded she could not take an active part in rehabilitation. The team recorded Mrs D was drowsy and unable to follow commands.
- The Reablement Team and Mrs D’s family did not agree about her ability to engage in therapy or her rehabilitation potential. The Reablement Team considered Mrs D’s mental capacity, but they recorded she was too drowsy to take part and it could not complete a full Mental Capacity Act assessment.
- A Best Interests meeting was held at the end of August 2019 to consider future care arrangements. The Trust, the Council and Mrs D’s family attended the meeting. Mr B did not agree with the meeting notes shared after the meeting. The Council reissued the Best Interest meeting notes incorporating Mr B’s comments, but these did not affect the conclusions.
- The Best Interests meeting notes record that Mrs D’s family agreed that Mrs D did have some mental capacity but this fluctuated. However, at the time of the meeting she lacked the capacity to make complex decisions about her care and needed support with these decisions by her family. Those at the Best Interests meeting agreed a plan for a social worker to complete a Continuing Healthcare (CHC) checklist (CHC is NHS funded care if someone’s primary needs are health related) and Care Act assessment with Mrs D and her family.
- The meeting notes also record discussions about physiotherapy needs and Mrs D’s ability to engage with this. The physiotherapist noted Mrs D’s previous difficulties engaging with therapy and that this had not been successful during the reablement period. It is recorded that Mrs D’s fluctuating capacity meant she could use the hoist if she was to able to understand and follow instructions.
- The notes indicate Mrs D’s family did not agree with the physiotherapist about future goals. They felt she should needed encouragement to move around. The health and social care professionals present considered the immediate priority was Mrs D’s safe care. The physiotherapist explained Mrs D was at risk of infection if she could not move, so they wanted to concentrate on reducing her infection risk by helping her to sit in a chair and move position. However, the physiotherapist did agree they would provide some exercises for Mrs D so her family could help her with these when fluctuations in her condition allowed.
- The Reablement Team completed a Care Act assessment at the beginning of September 2019. This identified Mrs D’s social care needs and that she needed two carers to mobilise using a hoist. As the family wished to keep her previous personal assistant, the Council agreed a package where a combination of direct payments and a care agency met Mrs D’s needs. This started when the reablement period ended.
- The Clinical Commissioning Group (CCG) completed a CHC assessment. Mrs D did not meet the criteria for CHC funded care. The CCG advised Mrs D and her family of the decision in October 2019.
- In January 2020 Mrs D’s family employed a private physiotherapist. Mr B says this helped her mobilise again.
- Mr B complained to the Council on 29 January 2020. This complaint was mostly about issues with Mrs D’s carers. The Council responded on 26 February.
- In March 2020 Mr B wrote to a local councillor setting out further concerns, including issues raised in Mr B’s complaint to the Ombudsmen. This was shared with the Council. The Council issued a response in April 2020. The Council sent a further response from an Assistant Director in June 2020.
- Mr B sent another complaint to the Council in July 2020. This included concerns about the Reablement Team not taking delirium into account when assessing Mrs D’s physiotherapy needs. As this concerned a joint service, the Council shared the complaint with the Trust. Both responses were shared with Mr B in August 2020.
- In July 2020 Mr B brought the complaint to the Ombudsmen. He continued to have contact with the Council after this date and in October 2020 the Council arranged a meeting to discuss their outstanding concerns about Mrs D’s care.
- On Mrs D’s hospital discharge, under local arrangements the Trust and the Council (with joint responsibility for Immediate Care Southwark) should have assessed her needs and considered therapeutic input. This would include her ability to take part in any rehabilitation for the reablement period. The Council was also responsible for considering her longer term social care needs by completing a Care Act needs assessment.
- The records show the Reablement Team assessed Mrs D following her hospital discharge. This shows it considered the effects of Mrs D’s dementia diagnosis and in particular her ability to understand instructions and actively take part in therapy. The records show the Reablement Team considered Mrs D’s mental capacity. Under the Mental Capacity Act a person is considered to have capacity unless there is proof to the contrary.
- When the Reablement Team saw Mrs D she was too drowsy to answer questions or take part in any therapy. It was therefore unable to complete a Mental Capacity assessment to find out if she could take part in decisions about her future care. Mental Capacity is time and event specific. I consider the Trust and the Council took adequate steps to establish that Mrs D could not understand or engage in her care planning at that time because of lack of consciousness. There is therefore no fault in this regard.
- Mrs D’s family did not agree with the Reablement Team’s proposal to stop physiotherapy, so the Trust and the Council arranged a Best Interests meeting. This was appropriate and in line with the Mental Capacity Act so they could agree with the family what was in Mrs D’s best interests.
- Relevant health and social care professionals, and Mrs D’s family attended the Best Interests meeting. They discussed the Reablement Team’s assessment. Although there was some disagreement, the records note there was broad agreement that Mrs D did not have capacity at that time to make decisions about her care. There was also agreement with the plan to assess Mrs D’s care needs and complete a CHC checklist. Given this agreement, there was no indication the Council or the Trust needed to consider more restrictive options.
- Mr B raised concerns that the Reablement Team did not account for Mrs D’s fluctuating capacity. The records show that assessments and home visits took place over several weeks and at no time was Mrs D able to communicate with the Team. Although her dementia diagnosis was noted, the records show the physiotherapist acknowledged Mrs D may have moments where she could engage. They provided advice and support to the family to help her with exercises whenever she was able.
- The records also show detailed consideration of Mrs D’s condition and ability to engage in therapy. The goal was for Mrs D to transfer out of bed with the help of her carers and to use a hoist to transfer into a chair. The assessment determined this was not possible because of Mrs D being unable to engage in therapy at that time. I do not the Reablement Team’s decision to discharge Mrs D from its service was fault. The records show this was a professional judgement based on clear documented evidence about Mrs D’s ability to engage in therapy. They gathered this evidence over several visits following Mrs D’s hospital discharge.
- The records also show a social worker completed a Care Act assessment and agreed a package of care. This assessment was adequately detailed and was completed in line with the Care Act. It identified Mrs D’s need for two carers to attend to help with moving Mrs D. As the family wished to keep Mrs D’s previous carer, the care package was set up to allow this. There were some issues with the Council’s carers, but it has addressed these and are not part of our investigation.
- Mr B says the decision left Mrs D a prisoner in her home. However, it is clear from the records that she could not engage in therapy at that time as she was too drowsy. The records show the Reablement Team considered the risk and based on the evidence decided that any care package should first be focused on keeping Mrs D safe and preventing infections. The physiotherapist provided advice and exercises for Mrs D’s family if her ability to participate in therapy improved.
- Mrs D’s family later employed a private physiotherapist to help Mrs D with her mobility, which they say helped. Mr B says the Trust and the Council should pay the costs of this physiotherapy because they had discharged her too soon. However, as noted above, the decision to discharge Mrs D from physiotherapy was made with appropriate consideration of her condition and ability at that time and without fault. The decision to employ a private physiotherapist was the family’s choice and if they considered Mrs D’s ability to engage in therapy had improved, they could have asked for a reassessment of her needs.
- The Council investigated and responded to Mr B’s concerns in a timely manner and in line with the Complaints Regulations and the Council’s own policy. When issues were raised about joint services, the Council involved the Trust and coordinated a response.
- After Mr B first complained, he contacted the Council a number of times and added further issues to his complaint. However, I have seen the Council and the Trust included these issues and responded to them in detail. I recognise Mr B was not satisfied with the outcome or responses, but the organisations have followed the Complaint Regulations correctly.
- Mr B was particularly unhappy that the Council’s final response did not refer to Mrs D. I have reviewed the response and I note this letter was in the context of a review of the complaint responses the Council had already provided. While I understand this may have been more conciliatory if it had included personal details, I consider the letter covered the relevant issues and I do not consider it was fault to not to refer to Mrs D by name.
- It is evident from the correspondence that the Council remained open to discussing any concerns with the family with a view to finding a resolution to their complaint. It also held a meeting with them after the complaint had been referred to the Ombudsmen. I consider the Council and the Trust have followed the complaint process in accordance with the law and local policy. I therefore do not find fault in this regard.
- I have not found the Trust or the Council was at fault in its assessment of Mrs D and the decision not to continue with physiotherapy. There is therefore no indication they should pay the private physiotherapy costs Mrs D's family incurred.
- I have found no fault in the Trust’s or the Council’s complaint handling.
- I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman