Western Sussex Hospitals NHS Foundation Trust (18 017 535a)

Category : Health > Hospital acute services

Decision : Upheld

Decision date : 30 Jan 2020

The Ombudsman's final decision:

Summary: Ms A has complained about a Trust and a Council in relation to a delay in discharging her father in law, Mr B, to a care home. The Ombudsmen find fault with the Trust in not making required referrals. However, we do not find fault in relation to the delay in diagnosis of dementia or the issuing of a behaviour warning. In addition, the Ombudsmen do not find fault with the Council in relation to a delay in finding suitable care homes, but it should have provided the family with a copy of Mr B’s initial needs assessment.

The complaint

  1. Ms A complains Worthing Hospital (the Trust) and West Sussex Council (the Council) delayed her father in law, Mr B’s discharge to a care home in September and October 2018. Specifically, she says:
  • the Trust failed to carry out a dementia assessment or properly assess his capacity which meant he was not given appropriate care and unsuitable care home placements were identified
  • The Trust unreasonably issued Mr B with an abusive behaviour warning as it failed to consider his potential dementia diagnosis as the reason for his behaviour
  • The Council delayed finding a suitable care home and did not share Mr B’s care plan with his family and;
  • The family were not told of any action taken by the Trust or the Council to safeguard Mr B following an alert raised by his son, Mr C.
  1. Ms A said Mr B became more disorientated and upset over his extended stay in hospital and he was distressed by the abusive behaviour warning. There was also frustration for his family in their attempts to find an appropriate care home placement. Furthermore, there was distress for the family knowing Mr B had an abusive behaviour warning on his record and was subsequently questioned by police. Ms A wants to:
  • ensure the Trust puts improvements in place to protect vulnerable patients who may lack capacity or have a potential dementia diagnosis, and
  • ensure an official note of correction from the Trust is placed on Mr B’s medical file regarding the abusive behaviour warning.

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The Ombudsmen’s role and powers

  1. 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)).
  2. If it has, they may suggest a remedy. 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.
  3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  4. 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

  1. During the course of my investigation I have considered evidence from Ms A, the Council and the Trust as well as taking into account any relevant legal or national guidance. In addition, I have taken advice from a Registered Nurse and a Consultant Geriatrician. Before making my final decision, I invited Ms A, the Trust and the Council to comment on my draft decision and considered the comments I received.

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What I found

Background

  1. Mr B was 81 when he was admitted to Worthing Hospital on 22 August 2018. He was suffering from urine retention and was reported to have been sleeping in his chair and not attending to his personal care. Previously that year he had several hospital admissions, but the subsequent discharges had not been successful and he had sometimes been readmitted shortly afterwards. Mr B also suffered from ischaemic heart disease and type 2 diabetes.

The Council

  1. Mr B was deemed medically fit for discharge on 29 August and a referral was made to the Council to carry out a Care Act assessment of his needs so that care could be put in place on his discharge from hospital. A social worker visited Mr B on 31 August and 3 September and spoke to him about his discharge and his wishes. During these visits Mr B expressed a wish to be discharged to a care home. He discussed his finances and that he would be self-funding his care home placement.
  2. On 4 September the social worker telephoned four homes to get costs and relayed this back to Mr B on the ward. The Council said on 10 September Mr B informed the social worker he liked one home (Home 1) in particular. The social worker agreed to ask the manager of Home 1 to visit him on the hospital ward to undertake a pre-admission assessment. The Council said Mr B told the social worker he would inform his son about this when he came to visit him on the ward.
  3. The Council said Home 1 informed the Council it had a place free from 17 September and Mr B’s son had already visited the care home. Home 1 told the Council both Mr B and his son were happy with the care home. However, Mr C has said in his complaint he visited Home 1 and found it unsuitable.
  4. The Council said Mr B was not discharged from hospital as planned as Mr C informed the ward that he had found an alternative care home placement (Home 2). The hospital agreed to delay Mr B’s discharge. However following Home 2’s assessment of Mr B it decided it could not meet his needs.
  5. There was a period when both the Council and the family were trying to identify and visit homes for Mr B. The Council noted there was a discussion with the family on 8 October when the family felt a diagnosis of dementia in relation to Mr B would help them find a suitable placement.
  6. On 8 October the Council contacted another home, Home 3 (an EMI home) with a view to it accepting Mr B. Home 3 had a vacancy so the following day the Council emailed Home 3 with a basic description of Mr B’s care needs. Home 3 emailed back on 10 October to say it could not meet Mr B’s needs and the placement had been taken.
  7. Between 16 and 30 October the social worker had regular contact with Mr B, Ms A and Mr C. The Council said various vacancies in care homes were identified by the social worker but unfortunately some of these were not able to meet Mr B’s needs or the possible room vacancy had been allocated to someone else in the meantime.
  8. The Council said no specific homes were recommended to the family as being the choice of the Council. For example, with Home 3, the social worker provided a summary of Mr B’s needs to the care home staff to make their own assessment of whether he was suitable for the placement.
  9. The Council said it was eventually identified that Home 4 could be an appropriate home for Mr B. An assessment of his care needs was undertaken by the manager of Home 4. Home 4 confirmed it could meet Mr B’s needs and he was discharged there on 30 October.
  10. Regarding the care plan, the Council has no record of sharing it with the family. It has changed its practices in future to:

“Remind staff to ensure they document on a person’s case record the date on which printed copies of Care Act assessments and/or care plans are provided to the person and/or relatives”’

The Trust

  1. There had been several incidences during a previous admission on the ward of Mr B being abusive to staff. This was recorded again on 12 September when he was said to have been abusive to a nurse. Mr B was issued with a ‘yellow card’ about his behaviour. This is a formal warning under the Trust’s Violence and Aggression Policy. The police were also involved but Mr B was not charged with any offence.
  2. On 28 September Mr C complained to the Trust about a lack of assessment of his father for dementia and pointed out the yellow card was supposed to take into account the patient’s medical condition. He also said his father did not have capacity and could not make a choice of home.
  3. The Trust responded to the complaint in November 2018 saying Mr B was thoroughly assessed by doctors as having mental capacity. It went on to say it was rare to diagnose dementia in hospital as the patient should first have a period medical stability. The usual practice was to ask the patient’s GP to arrange an assessment with the memory clinic.
  4. The Trust went on to say that one of the doctors had a long conversation with Mr C regarding how his father was fit for discharge and at risk of infection if he stayed. However, the Trust said due to the difficulty in finding a care home for Mr B the doctor ordered the tests and on 23 October a diagnosis of early dementia was made.
  5. The Trust said although Mr B was mildly cognitively impaired this did not excuse racist and sexually inappropriate comments to staff.
  6. Regarding the safeguarding concern, Mr C in his complaint stated he felt the treatment of his father regarding the discharge and yellow card was a safeguarding issue. The Trust responded on 2 October saying it had shared his email with the Council safeguarding team to investigate. The Council said it never received any safeguarding concern from the Trust.

Analysis

The Trust failed to carry out a dementia assessment or properly assess Mr B’s capacity which meant he was not given appropriate care and unsuitable care placements were identified.

The Hospital unreasonably issued Mr B with an abusive behaviour warning as it failed to consider his potential dementia diagnosis as reason for his behaviour

  1. Regarding Mr B’s capacity, mental capacity is classed as the ability to make a decision. This includes the ability to make a decision that affects daily life as well as more serious or significant decisions. It also refers to a person’s ability to make a decision that may have legal consequences such as agreeing to have medical treatment (Mental Capacity Act (2005) Code of practice. Page 41 Sections 4.1 and 4.2).
  2. The five statutory principles of the Mental Capacity Act (MCA) are:
  • A person must be assumed to have capacity unless it is established that they lack capacity.
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  • An act done; or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. (MCA(2005) Code of practice. Page 19).
  1. The MCA says that the onus is to establish on the balance of probabilities that a person does not have the relevant capacity rather than that they do.
  2. The Trust has said Mr B’s capacity was thoroughly assessed. There is no record of a mental capacity assessment in the medical notes provide to us. There is a Mini Mental State Examination taken on 19 October 2018 which scored him 25/30. This is classed as ‘normal’ by the National Institute for Health and Clinical Excellence (NICE). However, it is recorded on other dates in the notes that Mr B was confused, had memory difficulties and was vague in some of his answers about personal details. In addition, his family in their complaint said Mr B did not recognise family members and had false memories of past incidents.
  3. Mr B had also presented before in previous admissions to the hospital with similar difficulties. Bearing this in mind, Mr B should have been considered earlier for a referral to the Older Person’s Mental Health team. In addition, there was no clear history taken from the family to provide a background to Mr B’s difficulties. An assessment would not only be to consider his cognitive function but also other factors, for example symptoms of low mood that may have been impacting on his behaviour. The only record in relation to a referral being considered was not until 12 October, a month after being issued with a yellow card. I find this was fault not to make this referral.
  4. We cannot know what the impact of such a referral would have been on his treatment and whether it would have prevented the yellow card. However, it was a missed opportunity to assess Mr B and see if he needed any further support and this leaves the family not knowing if more could have been done to help Mr B in hospital.
  5. Testing someone’s capacity is decision and time specific. Although it was not formally assessed there is not sufficient evidence, on the balance of probabilities, that Mr B lacked capacity under the MCA. There is evidence that Mr B did have capacity during his stay. He was able at times to discuss his finances and treatment as well as his desire to find a care home placement. In addition, a diagnosis of dementia does not mean that someone lacks the capacity to make a decision. Therefore, even if he had been diagnosed earlier this does not mean he would have been deemed as lacking capacity.
  6. The yellow card was issued due to repeated abusive behaviour by Mr B. That he behaved this way has not been in dispute. Whilst the Trust has said an earlier diagnosis of dementia may have influenced their treatment of Mr B, it was also entitled to use the yellow card procedure to try and regulate Mr B’s behaviour. Mr B was deemed to have capacity and so I have not found fault with the Trust’s issuing of a yellow card.

The Council delayed finding a suitable care home and did not share the care plan with his family

  1. The Council carried out an initial assessment on 14 September which identified Mr B’s needs. This informed the choice of homes the social worker offered to Mr B. With regard to the care plan, a full care plan of Mr B was never completed by the Council.
  2. However, the Care and Support Statutory Guidance states the process is flexible and an assessment should be proportionate to a person’s needs (Care and Support Statutory Guidance 6.42, October 2018). A person with lower needs may need a less intensive response. Therefore, I have not found fault with the fact a full care act assessment was not carried out. However, there is no record that the initial assessment was ever shared with the family, despite their request for it, and this was a fault on the part of the Council.
  3. I have not found the fault delayed the search for care homes as the Council was providing details of Mr B’s needs to the care homes and care home staff were also coming out to assess him themselves. In addition, the Council has taken appropriate action by ensuring families are given this information in the future. However, Mr B’s family will have experienced some frustration at not receiving a copy of the assessment when they asked for it.
  4. The social worker suggested Home 1 and Mr B confirmed he would like to move there, and Home 1 confirmed it could meet his needs. It is understandable that the family felt other homes were more suitable for Mr B. However, the social worker fulfilled her duty by finding several suitable homes that could meet Mr B’s assessed needs. She also tried to facilitate his discharge to Home 1. In view of this I do not find the social worker was at fault or delayed finding a suitable care home.

The family were not told of any action taken by the Trust or the Council to safeguard Mr B following an alert

  1. There is no record of the Trust ever raising a safeguarding alert regarding Mr B with the Council. I find this was fault on the part of the Trust. We do not know what such an enquiry would have found, but it led to a lack of assurance on the part of the family that Mr B was being properly safeguarded.

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Recommendations

  1. Due to the faults I have identified and the subsequent impact on Ms A, I have made the following recommendations:
  2. The Trust should, by 29 February 2020,
  • Write to Ms A apologising for the impact on her of it not making an earlier referral to the Older Persons Mental Health Team
  • Apologise to Ms A for the impact on her of not raising a safeguarding issue with the Council
  1. And by 30 April 2020, the Trust should:
  • Provide Ms A and the Ombudsmen with evidence of the work it has carried out to ensure patients such as Mr B are promptly referred to the Older Persons Mental Health Team
  • Provide Ms A and the Ombudsmen with evidence of work it has undertaken to ensure that in future if family members raise safeguarding issues the referrals are promptly made to the Council
  1. The Council should, by 29 February 2020, write to Ms A apologising for the impact to Ms A of never being supplied with a copy of her father’s initial needs assessment.

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Final decision

  1. I find fault with the Trust in not making an earlier referral to the Older Peoples’ Mental Health Team and the lack of a safeguarding referral. However, I do not find fault in relation to the delay in diagnosis of dementia or the yellow card. In addition, I do not find fault with the Council in relation to the delay in finding suitable care homes, but it should have provided Ms A with Mr B’s initial needs assessment.

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Investigator's decision on behalf of the Ombudsman

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