Summary: The Ombudsmen find a hospital Trust and a Council failed to manage a complex discharge from hospital adequately. Together, they did not complete a suitable assessment of need, arrange an appropriate interim placement or conduct an adequate discussion of the person’s best interests. As a result the complainant was left with considerable uncertainty about whether a different outcome might have been reached. The Ombudsmen recommends apologies from the Trust and Council. It also recommends repayment of the cost of the missed interim placement and action to learn from the case.

The complaint

1. Mr D complains that about the care and support his father, Mr A, received from Liverpool City Council (the Council) and Aintree University Hospital NHS Foundation Trust (the Trust) in June and July 2017. Mr D complains:
1. Between 20 June and 17 July 2017 Mr A received poor care and treatment from the Trust because:
1. he was initially placed on an inappropriate ward
2. he was frequently moved between wards and some of the moves were at inappropriate times
3. he was frequently told he was being moved or going home when this was not the case
4. there is lack of clarity around what was wrong with his leg and uncertainty over whether he received the correct treatment
5. there is lack of clarity around a dementia diagnosis and treatment.
2. The Trust’s assessments of Mr A’s capacity were flawed.
3. The Council failed to complete social care assessments for Mr A while he was in hospital.
4. The Council and the Trust did not follow an appropriate or fair process before discharging Mr A to a care home. He said the Council and the Trust:
1. Failed to provide Mr A and his family with accurate and complete explanations and information about: mental capacity assessments; best interest decision making; Continuing Healthcare assessments; social care assessments; and, Deprivation of Liberty Safeguards
2. Failed to conduct a full multi-disciplinary team meeting as agreed with the family
3. Told the family in no uncertain terms that Mr A needed 24-hour care in a care home and could not return home. Mr D said the family are now being told this was not the truth
4. Lied to the family about Mr A’s discharge options during a meeting
5. Failed to say whether Mr A’s stay in residential care should be temporary, permanent and/or compulsory
6. Failed to properly conduct and record the best interest decision process.
5. The Council and the Trust’s complaint handling was flawed.
2. Mr D said Mr A and the family suffered distress, frustration and were caused avoidable time and trouble by these events.
3. Further, Mr D believes that Mr A may have been able to return to his own home rather than residential care if the Council and the Trust had done the relevant assessments properly and shared the correct information at the right time with each other and the family. Mr D said the Council and the Trust misled Mr A and his family into believing he had to stay in the care home for about 12 months between July 2017 and July 2018. Mr D said the family are left with the uncertainty of not knowing whether Mr A could still be living independently if he had gone back to his own home from hospital or soon after.
4. In bringing his complaint to the Ombudsmen Mr D would like the Council and the Trust to accept full responsibility for the problems he complains about, and to apologise for them. He would also like action to be taken to ensure other patients and families do not have similar problems in the future. Further, Mr D would like Mr A to now receive all the health and social care assessments he is entitled to.

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The Ombudsmen’s role and powers

5. 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).
6. 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).
7. 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

8. I read the correspondence Mr D sent to the Ombudsmen and spoke to him on the telephone. I wrote to the Council and Trust to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided.
9. I shared a confidential copy of my draft decision with Mr D, the Council and the Trust to explain my provisional findings. I invited their comments and considered all those I received in response.

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What I found

Background

10. In 2017 Mr A, 81 years old, lived alone without any formal support. In the evening of 20 June 2017 he went to hospital as he had a swollen leg and his GP was concerned it could be a Deep Vein Thrombosis (DVT) (a clot in the vein of his leg).
11. The hospital completed investigations and did not find Mr A needed any medical treatment that meant he needed to stay in hospital. However, staff noted Mr A seemed confused and members of the family also had concerns about this. Medical staff planned to involve colleagues from mental health, physiotherapy and social services in Mr A’s care.
12. Staff asked about Mr A’s normal living arrangements and, again, noted a family member’s concern about his safety. The medical staff assessed Mr A’s mental capacity to decide where he should go when he left hospital. They decided he did not have the capacity to make his own choice.
13. The Therapy Team saw Mr A. They had no concerns about his physical health or abilities. However, they noted there were obvious concerns about recent deteriorating cognition and decreasing safety at home. The therapist discussed possible discharge options with a family member. They noted the family member felt residential care was probably the most suitable option.
14. The hospital referred Mr A to the Council after this. It told the Council the family were looking for 24-hour care.
15. A mental health liaison nurse saw Mr A. The nurse noted they were asked to see him due to a 12-month cognitive decline. The nurse agreed that Mr A lacked the mental capacity to make decisions about his discharge arrangements. They noted there would be discussions about whether he would need 24-hour residential care.
16. An occupational therapist saw Mr A in early July 2017. They concluded that he would be at risk of harm if he went home without 24‑hour support. Therefore, the Therapist said they felt a move to a care home would be the best option for Mr A.
17. The Social worker met Mr A and his daughter later that day. They noted that the family had arranged for Mr A to visit a care home that day. (Social Care assessments of 2018 state the family’s visit to the care home was prompted by what they had been told about Mr A needing 24 hour care, and the pressure being placed on them for him to leave hospital.) The social worker recorded that the family member said Mr A would pay for his own stay if he went there as he would not be eligible for financial support.
18. A member of hospital staff spoke to Mr D the next day. They noted he wanted Mr A to go home with a package of care. A doctor noted that they still did not consider Mr A had the capacity to decide his own discharge arrangements. They also noted there was some disagreement between family members and said these should be considered at a best interests meeting.
19. A meeting took place on 12 July 2017. It concluded that Mr A would go to a care home from hospital. This transfer happened several days later.

Analysis

A1. Mr A was initially placed on an inappropriate ward

20. After arriving into the Emergency Department the hospital admitted Mr A to the Surgical Assessment Unit (SAU) in the early morning of the following day.
21. During the complaints process the Trust acknowledged the SAU was not appropriate for Mr A’s needs. It said it did not have any suitable beds available at the time. However, the Trust said appropriate staff reviewed Mr A and completed relevant investigations and referrals.
22. In addition, the Trust acknowledged that a bed by the window might not have been the most appropriate for Mr A. It said staff had not understood the significance of the position of the bed. The Trust accepted the bed position could have caused confusion. It said this had been shared with staff to promote learning.
23. The Trust has accepted a failing occurred. As it noted, medical staff reviewed Mr A regularly and the location of his care did not prevent staff from completing relevant tests and investigations. Therefore, I am satisfied the Trust has provided a proportionate response to this issue and no further action is required.

A2. Mr A was frequently moved between wards and some of the moves were at inappropriate times

24. Following Mr A’s admission to the SAU he:

• Transferred to Ward 3 and then to the Acute Medical Unit (AMU) on 27 June
• Staff noted in the following days that Mr A had been booked to move to Ward 11 but was brought to AMU by a porter in error. Staff recorded that the bed on Ward 11 was no longer available. As such, Mr A remained on AMU.
• Transferred to the Frailty Assessment Unit (FAU) and then onto the Aintree 2 Home unit (A2H) on 30 June.

25. The Trust acknowledged the move to the AMU was inappropriate. It said this was a mistake. The Trust said it has systems in place that should prevent these mistakes but they were not followed. The Trust said this was unacceptable and should not have happened. It said it had taken steps to learn from this incident and fed back to the relevant team.
26. The Trust did not identify any failings in relation to the other ward moves.
27. As noted above, the hospital initially placed Mr A on an unsuitable ward due to a lack of availability. It is evident in the records that staff were conscious of the need to move him to a more suitable ward, which was appropriate. The move to the AMU should not have happened and the Trust has already accepted this. Overall, it is understandable that Mr A and his family found the moves frustrating and aggravating. However, there is evidence to show staff shared appropriate information at each handover to ensure there was a continuity of care. In this context, I do not consider the moves represent a significant failing that amounts to fault.

A3. Mr A was frequently told he was being moved or going home, when this was not the case

28. Mr D said during Mr A’s time on the SAU staff told the family they were going to discharge Mr A. Mr D said he and another relative were concerned about what other patients said about Mr A’s night time behaviour. He said it took the intervention of other patients to persuade staff on the SAU that there might be a problem, and not to discharge him.
29. During the complaints process the Trust said it had not recommended Mr A be discharged home. It said it recommended he needed 24‑hour care. It apologised for any miscommunication about this.
30. The records I have seen support the Trust’s response. The records show staff were considering discharge plans from an early stage. This is in keeping with guidance on discharge from hospital. I have not seen any evidence to show staff had made any set plans for Mr A to leave hospital until after the best interests meeting.
31. I cannot explain why Mr D was told Mr A would be discharged. Having weighed all the evidence available to me, from Mr D and the hospital records, on the balance of probabilities I do not consider there was a plan to send Mr A home before the meeting on 12 July 2017. Therefore, I find no fault here.

A4. A lack of clarity around what was wrong with Mr A’s leg and uncertainty over whether he received the correct treatment

32. The hospital completed an ultrasound Doppler to investigate the swelling in Mr A’s leg. This is a test to check blood flow. This did not find evidence of a DVT. Doctors concluded the leg swelling related to a Bakers Cyst (a fluid-filled swelling that develops at the back of the knee).
33. In the Trust’s response of November 2017 it told Mr D an ultrasound Doppler scan confirmed Mr A had a DVT. However, in its response of June 2018 the Trust said the Doppler showed Mr A did not have a DVT but had a Bakers Cyst. The Trust apologised this was not clearly explained.
34. The hospital records I have seen do not contain any evidence that the Trust diagnosed Mr A as having a DVT.
35. NHS Choices notes that treatment for a Bakers Cyst is not required if the person does not have any symptoms, and possible treatments can be done at home. It is evident from the hospital records that doctors and nurses regularly reviewed Mr A. They did not identify any physical symptoms and therapists found him to have good mobility. Therefore, I have not identified any failings in relation to how the Trust responded to Mr A leg symptoms.
36. The Trust’s initial complaint response was incorrect, but this was corrected in a later response. I appreciate this confusion was frustrating but, in the context of the underlying medical care, do not consider this amounts to fault.

A5. A lack of clarity around a dementia diagnosis and treatment

37. The hospital records show that early in Mr A’s admission a doctor reviewed him and queried whether he might have delirium and an underlying dementia. The doctor asked for tests of Mr A’s mental abilities and planned to ask for the advice of the Mental Health Liaison Team. On 27 June 2017 a doctor recorded in the notes a diagnosis of ‘likely dementia’.
38. Mr D said that during the best interest meeting in July they discussed what a CT head scan showed and talked about Mr A having dementia. He said a doctor said Mr A had dementia, noted he was not taking any medication for it and planned to speak to a mental health liaison nurse about this.
39. In its response to the complaint the Trust said doctors made a differential diagnosis of delirium or dementia. It apologised if it did not explain delirium at the time. It also apologised if doctors did not adequately explain the results of the CT head scan at the time. The Trust said there had not been a plan to review Mr A as an outpatient in relation to a possible need for medication.
40. In response to the Ombudsmen’s enquiries the Trust also said it would not have been appropriate for its clinicians to have made a definitive diagnosis of dementia. However, it said it had referred Mr A to an appropriate team to continue investigations.
41. The Trust’s responses are at odds with some entries in the medical records:
• A doctor made notes of their attendance at a meeting on 12 July. In keeping with Mr D’ account, this included a note that ‘Family were told [Mr A] has Alzheimer’s’.
• On the next day the doctor spoke to a mental health liaison nurse. They noted the nurse ‘said [Mr A] has Alzheimer’s. The case was discussed [with a doctor and]… the overall impression is that it is Alzheimer’s. They do not start Alzheimer’s medication in hospital due to compliance but they will consider it in [outpatient department]’.
42. Therefore, even at this late stage the difference between the records and the Trust’s explanations means there is still uncertainty about Mr A’s diagnosis while he was in hospital. This is fault. As a result Mr D has been left with uncertainty and experienced frustration. This is an injustice. I have made a recommendation to address this.
43. Mr D highlighted that, aside from wanting to know the diagnosis in its own right, this issue is also significant to the discussions about discharge arrangements. He said professionals used the diagnosis of dementia as justification for why Mr A could not return home and why he needed to go into a care home. I will return to this point later in the decision.

B. The Trust’s assessments of Mr A’s capacity were flawed

44. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Mental Capacity Act Code of Practice (the Code of Practice) describe the steps people should take when deciding something for someone who lacks capacity.
45. The hospital records provide evidence to show the Trust were considering Mr A’s capacity appropriately. Professionals considered his capacity in relation to a specific issue (his discharge from hospital) and considered relevant factors (about his ability to understand, retain and weigh up information, and to communicate). Doctors also saw Mr A at different times to help check these things. In addition, the records show that professionals kept Mr A’s capacity under review, by continuing to think about relevant considerations throughout his admission.
46. Therefore, I consider the Trust acted in line with the MCA and followed a proportionate and appropriate process before making a decision about Mr A’s capacity. I find no fault. Having followed a suitable process the professionals were entitled to exercise their professional judgement to make their own decision about Mr A’s capacity. It is not for me to replace their judgement with my own.

C. The Council failed to complete social care assessments for Mr A while he was in hospital

47. Leaving hospital after an inpatient stay is part of a process and not an isolated event. Planning should start at the earliest opportunity and it should involve health and social care staff in the hospital and community working together. The process should lead to a personalised plan for each patient who is leaving hospital. Good discharge planning should help patients leave hospital safely, without delay and with suitable support ready in the community. Key guidance about this is the Department of Health’s Ready to go? Planning the discharge and transfer of patients from hospital and intermediate care, published in 2010.
48. As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe (Schedule 3, Care Act 2014; and The Care and Support (Discharge of Hospital Patients) Regulations 2014)).
49. Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve (Sections 9 and 10, Care Act 2014). There is no set assessment process, but it should be proportionate to the person’s needs (Section 6.3, Care and Support Statutory Guidance (CSSG)).
50. An assessment must be done ‘before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs’ (Section 6.10, CSSG).
51. If a person is a permanent resident in a care home and has more than the capital limit (currently £23,250) they are not eligible for financial support from the council and must pay the full cost of their care (Section 12(1), The Care and Support (Charging and Assessment of Resources) Regulations 2014; and Sections 8.12 and 8.13, CSSG).
52. However, councils must assess a person’s needs when it appears they might need care and support regardless of their financial situation (Section 6.13, CSSG).
53. The Council’s notes show that Mr A’s allocated social worker spoke to one of Mr A’s relatives on 6 July 2017. The relative noted that if Mr A went to the care home he would pay for it himself. The social worker said this would mean her involvement would be minimal. The social worker did not complete a social care assessment of Mr A’s needs.
54. In response to the Ombudsmen’s enquiries the Council accepted it failed to complete an assessment of Mr A’s social care needs, and accepted this was not in line with the Care Act. The lack of a social care assessment is fault, which the Council accepts.
55. Further, the Council said Mr A should have been offered a 28-day placement (at no cost to him). This is further fault.
56. The Council said it had reminded its staff of their duties under the Care Act to assess adults regardless of funding status. It also said it is also in the process of issuing further guidance about this. These are appropriate actions to help prevent recurrences of these faults.
57. As the Council has referenced, guidance about discharge from hospital encourages professionals to assess people’s needs when they are settled. When someone is medically stable professionals are encouraged to transfer people to funded short-term placements if their long-term needs are not clear. This is to allow time for a thorough assessment after a period of relative stability outside of an acute hospital environment. In addition, it is to help ensure that decisions about a person’s long-term care are not made hastily, before there is a fair understanding of their long-term needs.
58. As a result the faults identified here Mr A missed out on a structured, formal, comprehensive review of his needs. Regardless of any medical diagnosis, such an assessment would have set out what practical needs Mr A had on a day‑to‑day basis and how these needs impacted on his life.
59. The lack of such an assessment meant that that later discussions were had – and decisions were made – about how (and where) to meet Mr A’s needs without those needs having been clearly established and defined. Instead, the evidence shows discussions relied on broad conclusions that Mr A needed 24-hour care. This fault has contributed to considerable uncertainty about whether decisions about Mr A post-hospital care were appropriate and properly considered. This is an injustice.
60. The Council offered to reimburse the cost of 28 days of care (£2,015.76). During the complaints process the Council said this was equivalent to its standard rate for EMI residential care (£503.94 a week) for 28 days. When the Ombudsmen make recommendations to address an injustice caused by fault they aim to put the person back in the position they would have been had the fault not occurred. As such, financial recommendations are not based on what a service would have cost an organisation. Rather, remedies for financial loss should repay any unnecessary payments the person made, regardless of whether this is less or more than it would have cost the organisation. Therefore, I have included a recommendation to address this financial injustice below.
61. The Council has also offered a payment of £250 for time and trouble. I will consider the overall impact of these faults later in the decision.

D1. The Council and the Trust failed to provide Mr A and his family accurate and complete explanations and information about: mental capacity assessments; best interest decision making; Continuing Healthcare assessments; social care assessments; and, Deprivation of Liberty Safeguards

62. In response to the complaint the Council acknowledged its social worker could have given Mr D more information about the Continuing Healthcare process. It apologised this did not happen.
63. In communication with the Ombudsmen the Council said it does not have any record of staff giving Mr A or his family information about needs or capacity assessment. It acknowledged this information should have been provided.
64. From my perspective it is difficult to establish what information professionals gave to Mr A and his family. As Mr D has noted, his father’s discharge from hospital was a complex situation. Further, as Mr A came to hospital for a medical reason, the situation was unexpected. The onus was on the professionals involved in the case to explain relevant concepts and processes to the family. Based on the available records and taking account of the Council’s responses, not enough information was provided. This is fault, and I consider both the Trust and Council hold some responsibility for this. The lack of information is likely to have made the discharge process more stressful than it otherwise would have been. Further, it is evident that Mr D has been left with uncertainty about whether, with fuller information, a different outcome may have occurred. This uncertainty is a further injustice.

D2. The Council and the Trust failed to conduct a full multi-disciplinary team meeting as agreed with the family; and

D6. The Council and the Trust failed to properly conduct and record the best interest decision process

65. A key principle of the MCA is that any decision, or action, must be in the best interests of the person without capacity. Section four of the MCA provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. Chapter five of the Code of Practice provides additional guidance on this.
66. A meeting to consider Mr A’s best interests and discharge arrangements took place on 12 July 2017. During the complaints process the Trust said the social worker arranged the meeting. In contrast the Council said Health staff arranged the meeting.
67. The records I have seen do not completely clarify this issue. They show that:
• On 26 June 2017 a nurse noted the case needed ‘discharge planning in patient best interest and MDT approach’
• On 27 June 2017 a doctor noted Mr A’s case needed a multi‑disciplinary approach and ‘likely a best interest meeting to consider for long term care’
• On 29 June 2017 a doctor noted Mr A was medically fit for discharge but needed a best interest meeting to decide on his care needs. They also spoke to Mr A and a family member and said they were waiting for a social worker to see him and to arrange the best interest meeting
• On 5 July 2017 a social worker visited the ward and said she would contact one of Mr A’s relatives and arrange a best interest meeting
• On 7 July 2017 a doctor noted some disagreement between family members about discharge arrangements and said they should consider a best interests meeting
• On 11 July 2017 a member of hospital staff told the social worker there was to be a multi-disciplinary meeting on the ward the next day and asked the social worker to attend.
68. Overall, on the balance of probabilities, it seems the Trust arranged the meeting. Further, it was Trust staff that had originally noted the need for the meeting, and continued to note this throughout the admission. Regardless of who arranged it, the meeting took place on 12 July 2017.
69. The Trust said no one from the Therapies teams attended because Mr A was independently mobile. It also said the doctor who attended was not familiar with Mr A. In communication with the Ombudsmen the Trust said it is not recorded who else was at the best interest meeting.
70. The Trust said the meeting took place in the Ward Manager’s office which, at the time, had some boxes of new furniture. The Trust acknowledged this is a warm room. The Trust apologised that a more appropriate room was not available.
71. The Council said the meeting fell short of the standards it expects. It said there was a breakdown in communication about who should be there and the venue was not appropriate. The Council also said its Hospital Social Work Team would ensure that multi‑disciplinary meetings were planned in advance to make sure relevant professionals were invited.
72. Records of this meeting are extremely sparse. This should not be the case and is not in keeping with the MCA. This, in itself, amounts to fault. There should be a clear account of who participated in this meeting, what they contributed, what options were considered and what the outcome was.
73. Aside from the recording of the meeting, the very limited evidence does not offer reassurance that the meeting was appropriately robust or managed in line with the MCA. This meeting was an opportunity for professionals and the family to give their account of what Mr A would consider to be in his best interests; not to give a view on what they felt his best interests were. There is clear guidance about how best to achieve this. The limited notes do not suggest the meeting was managed in a way that ensured this happened. This is further fault.
74. As noted above, the Council has acknowledged that Mr A should have been offered a 28-day placement after he left hospital. This would have allowed time for Mr A’s condition to settle, and time for a more thorough assessment of his needs. As such, it is questionable as to whether this meeting should have taken place at this time at all.
75. The Department of Health published Living well with dementia: A National Dementia Strategy in February 2009 (the Dementia Strategy). The Dementia Strategy notes that most people with dementia want to remain living in their own homes for as long as possible. It notes ‘Residential care may be the most appropriate and effective way of meeting someone’s needs and providing a service of choice. But it should always be a choice. All too often people with dementia (particularly older people) find themselves on a conveyor belt that takes them into long-term residential care because it appears that there are no alternatives available. This is especially the case if the person is admitted to hospital after a crisis’ (Chapter five, paragraph 8, Dementia Strategy).
76. In this case Mr A should have been given further time outside of the acute hospital environment. In addition, there should have been a more robust, comprehensive consideration of his best interests, and this should have happened in a transparent way. This did not happen and is fault. Both the Trust and Council had responsibilities to ensure Mr A’s transfer from hospital was appropriate and well managed. As such, I consider both hold some responsibility for this fault.
77. As a result of the fault, at the very least Mr A missed out on a funded 28-day placement. As previously noted, I have made a recommendation about this. Outside of the immediate financial impact these faults have left considerable uncertainty about whether an appropriately managed discharge process would have led to a different outcome. I cannot say whether it would have or not. However, the uncertainty alone is an injustice.

D3. The Council and the Trust told the family in no uncertain terms that Mr A needed 24-hour care in a care home and could not return home. Mr D said the family are now being told this was not the truth;

D4. The Council and the Trust lied to the family about Mr A’s discharge options during a meeting; and

D5. The Council and the Trust failed to say whether Mr A’s stay in residential care should be temporary, permanent and/or compulsory

78. Mr D said professionals told the family at the best interest meeting that Mr A must have 24-hour care. Further, he said the professionals said this could not be provided in his own home. Mr D said professionals presented the family with two options – for Mr A to go to:
• The care home the family had visited
• A Council‑sourced, as yet unidentified, care home which could be anywhere.
79. Mr D said, in the face of just these options, the family opted for a move to the care home they had been to see. He said that was the only realistic option given what they were told about where another placement might be.
80. In addition, and as referenced above, Mr D said one of the main reasons for professionals saying Mr A needed a care home was because he had dementia.
81. During the complaints process the Trust said there was mutual agreement that a placement, rather than returning home, was appropriate. The Trust acknowledged Mr D had requested a package of care at home but said its staff did not consider that to be safe.
82. In communication to the Ombudsmen the Trust said its clinical recommendation, following relevant assessments, was that Mr A needed 24‑hour care. It said this was, in part, because of reports by the family that Mr A’s wandering increased in the evenings and increased his risk of harm. The Trust said that one of Mr A’s relatives also felt residential care was probably the most suitable option.
83. The Trust said it did not specify any length of time that Mr A should spend in a residential home. It said it could not see that any consideration was given to potential changes in long‑term needs, or future assessments to be carried out. The Trust said the discharge team appeared to have identified and responded to immediate needs.
84. During the complaints process the Council said a member of the family told the social worker they wanted to consider the specific care home Mr A was discharged to. It said it did not have any evidence to say the social worker said Mr A could either go to a care home of his choice or one that might be some distance away from his home. It said there was no evidence of a discussion implying the social worker said Mr A might be moved out of Liverpool.
85. The Council concluded the decision to move Mr A to the care home was a decision he took with Mr D and another relative. The Council said it had no evidence its staff told the family that Mr A would not be able to return home. It said placements at care homes are subject to review. Further, the Council said it would have been up to the care home to apply for Deprivation of Liberty Safeguards had it felt these were necessary.
86. The hospital records show that, from early in Mr A’s admission, professionals and member of his family did have concerns that he was confused, forgetful, and would not be safe at home. The professionals were entitled to have such concerns. Further, having identified these concerns it was appropriate to act on them and take steps to ensure Mr A would be safe after he left hospital.
87. As noted above, there is some uncertainty about whether Mr A had dementia. Decisions about care and living arrangements should be based on assessments of a person’s needs, not on the presence of a particular diagnosis. It may be relevant to note a person’s diagnosis, and how this might progress, but it is crucial to consider how the condition manifests in the person on a day-to-day basis. While I have noted concerns about the lack of a formal assessment of Mr A’s needs, I do not consider the Trust’s support for a care placement was solely based on the presence of a diagnosis of dementia. As noted above, there is evidence that doctors, nurses, therapy staff and mental health staff assessed Mr A and all shared concerns about his ability to cope on his own. Further, the evidence shows medics felt it was likely Mr A had dementia. Given the common symptoms and progressive nature of this disease it was reasonable for staff to refer to it in discussions.
88. As noted above, the records about what was discussed at the best interest meeting are limited. Similarly, previous notes of discussions with family members are not particularly specific. Therefore, from my independent perspective and even on the balance of probabilities, it is not possible to resolve the dispute between Mr D and the organisations about was or was not said about the options the family had. Therefore, I have made no finding on this point. Nevertheless, this does not alter my earlier conclusion that the discharge process was not managed adequately.

E. The Council and the Trust’s complaint handling was flawed

89. During the complaints process the Trust apologised for the length of time it had taken to reply. It accepted the delay had been unacceptable and that this added to Mr D’ distress. The Council also apologised for the time it had taken to respond.
90. It was appropriate for both organisations to apologise for the delays in their handling of Mr D’ complaint. I have made an additional recommendation to address the time and trouble Mr D experienced in pursuing his complaint.

Summary

91. There were significant failings in this case. Mr A came into hospital for a medical reason but this alerted professionals to wider concerns about his overall wellbeing. Professionals were correct to act on these concerns and involve colleagues and think about Mr A’s safety when he left hospital. It was also reasonable to consider Mr A’s capacity to make his own choices and the evidence persuades me the Trust considered this appropriately.
92. However, regardless of Mr A’s capacity, and regardless of whether he had a specific diagnosis (of dementia) or not, the Trust and Council needed to keep his wishes, values and specific needs at the centre of the discharge planning process. The Trust and Council should not have facilitated decisions about Mr A care and living arrangements without first clearly and comprehensively establishing his needs. As the Council has acknowledged, this should have included first giving Mr A time to settle in a non‑acute environment via a funded 28-day placement. In addition, the consideration of Mr A’s best interests should have been more thorough and transparent to be in keeping with the MCA.
93. Mr D believes that Mr A may have been able to return to his own home if the Council and the Trust had done the relevant assessments properly and shared the correct information at the right time. It is not possible for me to say whether this is case. Such decisions must rest on appropriate assessments and it would be inappropriate for me to make my own judgement. However, this uncertainty is an injustice.
94. In addition, Mr D said the Council and the Trust misled Mr A and his family into believing he had to stay in the care home for about 12 months between July 2017 and July 2018. I have not seen anything in my review of the records that provides evidence of this. As the Council noted in its complaints process, it would have been for the care home to consider Mr A’s ongoing stay in the care home and to respond to any requests to end his placement. However, events after Mr A left hospital in July 2017 are outside the scope of this investigation.

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Agreed actions

95. Within one month of the final decision the Trust should write to Mr D and acknowledge there was avoidable confusion about whether Mr A had dementia during and after his admission to hospital. As part of this, it should acknowledge the evidence of staff telling the family that Mr A had Alzheimer’s and acknowledge that this does not match what it said during the complaints process. The Trust should also acknowledge this caused Mr D avoidable uncertainty and frustration. Further, the Trust should apologise for the injustice (the uncertainty and frustration) its fault caused.
96. Within one month of the final decision the Council should write to Mr D and acknowledge that it failed to complete an assessment of Mr A’s social care needs. The Council should also acknowledge this had a negative impact on later discussions of Mr A’s case due to the lack of a clear, formal record of his specific needs. Further, the Council should also acknowledge this contributed to avoidable uncertainty about whether the outcome of Mr A’s discharge from hospital might have been different. The Council should also apologise for the injustice (the uncertainty) its fault caused.
97. Within one month of the final decision the Council should write to Mr D and ask for evidence of the amount Mr A paid for the first 28 days of residential care after he left hospital in July 2017. On receipt of appropriate evidence the Council should arrange to refund the full amount Mr A paid for these 28 days. It should make this payment within one month of receiving the evidence.
98. Within one month of the final decision the Council should write to Mr D and acknowledge that, aside from the financial implications, the failure to arrange a 28-day placement had wider implications for the management of Mr A’s discharge from hospital. The Council should acknowledge this contributed to avoidable uncertainty about whether Mr A might have been able to return home with support. The Council should also apologise for the injustice (the uncertainty) its fault caused.
99. Within one month of the final decision both the Trust and the Council (separately or together) should write to Mr D and acknowledge that professionals did not provide Mr A or his family with adequate information during the discharge process. In relation to this, the organisations should acknowledge this was an unplanned hospital admission which led to a complex discharge with considerations of: continuing healthcare; social care assessments; and mental capacity and best interests. The organisations should acknowledge these are subjects that members of the public are unlikely to be familiar with and that the onus is on professionals to either provide advice or directions to suitable advice. The Trust and Council should also acknowledge that, as a result of the lack of information, the discharge process was more stressful than necessary for Mr A and his family, and there is more uncertainty about the outcome than necessary. The Trust and Council should apologise for the injustice (the stress and uncertainty) their fault caused.
100. Within one month of the final decision both the Trust and the Council (separately or together) should write to Mr D and acknowledge the best interests process was not handed appropriately, and that they share responsibility for this. Specifically, the organisations should acknowledge there are inadequate records of the meeting and acknowledge that the meeting was not adequate or in line with the Mental Capacity Act. The Trust and Council should also acknowledge that, as a result of this inadequate best interests process, Mr D has been left with considerable uncertainty about whether the outcome of Mr A’s discharge from hospital might have been different. The Trust and Council should apologise to Mr D for this injustice (the uncertainty) their fault led to.
101. Within three months of the final decision both the Trust and the Council should arrange for appropriate personnel to review the circumstances of this case along with any relevant policies and staff guidance. They should consider whether their policies, procedures and guidance are adequate to ensure that complex discharges from hospital are managed in line with relevant legislation and guidance. If the Trust and/or the Council identify any shortcomings they should produce a SMART action plan to address them. In addition, the Trust and the Council should consider proportionate steps to ensure relevant members of staff are familiar with their responsibilities in these situations. The Trust and the Council should provide the Ombudsmen with evidence of the work it does.

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Decision

102. I have completed my investigation on the basis there was fault by both organisations which led to an injustice. I have made recommendations to address this outstanding injustice.

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Investigator's decision on behalf of the Ombudsman