Summary: Mr S complained the Council and Trust failed to ensure his father, Mr F, was properly discharged from hospital into residential care. He also complained the Council failed to assess Mr F’s care and support needs. We have found fault in the actions of both organisations. We recommended financial remedies and apologies. The Council and Trust accepted our recommendations, so we have completed our investigation.

The complaint

1. Mr S complained on behalf of his father, whom I shall call Mr F, that:
• Gloucestershire County Council (the Council) and Gloucestershire Hospitals NHS Foundation Trust (the Trust) failed to ensure Mr F was discharged from hospital into temporary residential care in accordance with relevant law and guidance; and
• the Council failed to assess Mr F’s care and support needs.
2. Mr S said that as a result, Mr F’s family had to make their own arrangements for his residential care. He said Mr F missed out on receiving up to six weeks of residential care free of charge.
3. Mr S wanted Mr F to receive a reimbursement of £5,400 in residential care fees.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. 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.
7. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
10. 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

11. I considered evidence Mr S has provided in writing and by telephone. I also considered written information and documentary evidence from the Council and Trust.
12. Mr S, the Council and Trust have had an opportunity to comment on a draft version of this decision. I took all the comments they made into account before reaching a final decision.

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What I found

Relevant law and guidance

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (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 says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
14. Government guidance called “COVID-19 Hospital Discharge Service Requirements”, published in March 2020 was in force at the time of Mr F’s discharge from hospital in July 2020. I will refer to it as “Hospital Discharge Guidance” going forward. It said:
• “hospitals must discharge all patients as soon as they are clinically safe to do so";
• “the NHS will fully fund the cost of new or extended out-of-hospital health and social care support packages”;
• “a discharge to assess model will be introduced across England”;
• the model was based on four pathways, 0-3;
• pathway 2 was for people who needed rehabilitation in a bedded setting;
• hospitals were responsible for leading on discharge of patients on pathway 0 (people who could return home without input from health or social care);
• the NHS and social care organisations needed to work together to ensure successful discharge across pathways 1 to 3;
• a standard leaflet (leaflet A) describing the arrangements should be shared with all patients on admission to hospital;
• another standard leaflet (leaflet B2) should be used to discuss the discharge with the patient and their family on the day of discharge;
• for “patients whose needs are too great to return to their own home... a suitable rehabilitation bed or care home will be arranged”. The NHS will pay for this support, to ensure patients move on from the hospital beds as soon as possible;
• hospitals must tell patients and their families fully of the next steps; and
• hospitals should involve social care colleagues in daily ward reviews.
15. Leaflet B2 says “The care provided will be free of charge for a period of time to support your recovery”.
16. Section 4 of the Care Act 2014 says councils must have services providing information and advice about social care in their areas. This includes information about choice of and access to care providers, and accessing independent financial advice related to social care. Councils must ensure the information provided is enough to enable people to:
• understand the possible effect on their finances of social care choices; and
• make plans for meeting social care needs.
17. Section 9 of the Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
18. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
19. The Nursing and Midwifery Council (NMC) has published guidance called The Code. At section 10, it says nurses must keep clear and accurate records. Section 3 says that nurses must “act in partnership with those receiving care, helping them to access relevant health and social care, information and support when they need it”.
20. The General Medical Council (GMC) has published guidance for doctors called Good medical practice and Decision making and consent. Paragraphs 19-21 of Good medical practice refer to making sure records are clear, accurate and legible. Decision making and consent says:
• “Serious harm can result if patients … are not given the information they need - and time and support to understand it - so they can make informed decisions about their care”; and
• “Keeping patients’ medical records up to date with key information is important for continuity of care. Keeping an accurate record of the exchange of information leading to a decision in a patient’s record will inform their future care”.

What happened

21. Mr F went into hospital for emergency bowel cancer treatment in early June 2020. By 21 June, the Trust considered him medically fit for discharge to “rehab” and referred him for bed-based rehabilitation the following day. The Council’s records show it was aware of the referral by 24 June. This indicates Mr F should have been discharged under pathway 2.
22. Mr S says that:
• COVID-19 restrictions meant family could not visit Mr F, and communication with the Trust was difficult;
• towards the end of Mr F’s stay, it was clear to Mr S that his father could not manage at home because of incontinence and general weakness;
• the Trust put pressure on the family to arrange for Mr F’s discharge; and
• the Council did not discuss discharge arrangements with Mr F or his family.
23. Mr F’s medical record for 24 June says the Trust was waiting for an available rehab bed and Mr F was aware. Records for 26 June say he consented for a doctor to refer him to the Council’s social care service and to speak to his son (Mr S’s brother, Mr B).
24. According to Mr F’s medical record for 4 July, the Council’s social care service called Mr F’s ward. A nurse told the Council the Trust had been informed he was going to a nursing home in three days. The Council was going to call back to confirm the arrangements. Another record, written on 6 July but referring to a discussion of 3 July, states that Mr F’s family was arranging discharge to a private care home.
25. The Council’s record for 4 July, following its call with the Trust, says:
• there were no details in Mr F’s medical notes about the discharge to the nursing home;
• the Council contacted the nursing home, which confirmed “the son had arranged the move and was thought to be sorting it out with the ward yesterday”; and
• “Referral declined”.
26. The Council’s record says separately that a rehabilitation placement it had sought earlier had declined a referral for Mr F “due to continence issues”.
27. The medical records for the period indicate Mr F had the mental capacity to understand his needs and limitations, although he was feeling very weak and tired.
28. The Trust has not shown us any documentary evidence of the following:
• sharing leaflets A1 and B2 with Mr F or his sons; or
• the discussions it had with Mr F or his sons about discharge arrangements.

My analysis

29. The Trust’s records refer to some discussions with Mr F and Mr B about Mr F’s discharge from hospital. However, there is no record of the content of those discussions or evidence that the Trust shared the relevant information from the Hospital Discharge Guidance with Mr F or his sons. It is unclear whether the staff who spoke with Mr F and Mr B were doctors or nurses. However, both NMC and GMC guidance requires professionals to keep accurate records. Failure to do so was fault.
30. I was not present during the discussions, so I do not know their content. However, I consider it more likely than not that the Trust did not give Mr F and Mr B enough information about the discharge process and financial implications, or about the Council’s role in arranging funded residential care. This is because there is no record of the Trust giving Mr B or his sons the relevant leaflets, and none of the references to discussions mention the information in the leaflets. I therefore consider the Trust was at fault in failing to share this information, as required by the Hospital Discharge Guidance, NMC’s The Code and GMC’s Decision making and consent.
31. The Council failed to ensure Mr F had sufficient information about the social care system and charges in its area. This was contrary to section 4 of the Care Act 2014 and fault.
32. As a result, Mr F decided to move to a privately arranged nursing home without having access to all the relevant information about the financial consequences of doing so.
33. The Council finished its involvement with Mr F:
• three days before he left hospital;
• based on two brief conversations with a ward nurse and a nursing home;
• without discussing the matter with Mr F;
• despite being aware there was little information about the discharge (see point 25 above); and
• without carrying out an assessment of his need for care and support, contrary to section 9 of the Care Act 2014.
34. This was also fault, which contributed to Mr F deciding to leave hospital without having access to all the relevant information.

Summary of fault and injustice

35. The Trust and Council failed to ensure Mr F or his sons had the relevant information about social care and charging before he left hospital. The Council compounded this error by failing to assess his social care needs.
36. It is likely Mr F would not have moved to a privately funded care home, had the Trust and Council acted without fault. The faults have caused Mr F a financial injustice, of having to pay for care which he could have received free of charge. We recommended the Council and Trust apologise to Mr F and pay him the equivalent of six weeks’ care fees to remedy this injustice.
37. We recommended six weeks of care fees were reimbursed because:
• the guidance expected most assessments, during which care should have been free of charge, to have been completed within six weeks;
• Mr F is likely to have been deemed as having the resources to pay for his own social care after the relevant assessments; and
• there is no basis to say the Council would have completed the assessments in less time.

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Agreed actions

38. Within four weeks of my final decision, the Council and Trust will send Mr F a meaningful apology for the faults identified in this statement and their impact on him.
39. Within two months of my final decision and subject to receiving evidence of Mr F’s residential care fees, the Council and Trust will reimburse six weeks’ care fees. The Council and Trust should each pay 50% of the total.

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Final decision

40. Both organisations acted with fault, causing a financial injustice to Mr F. The Council and Trust accepted our recommendations, so we have completed our investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman