Shrewsbury and Telford Hospitals NHS Trust (18 018 951a)

Category : Health > Hospital acute services

Decision : Upheld

Decision date : 18 Aug 2020

The Ombudsman's final decision:

Summary: Mrs Z complains about her late father’s care and assessments in hospital, discharge from hospital and communication by the organisations involved. We have found fault relating to documentation, communication and complaint handling. We have not upheld the rest of the complaint. The Council has offered a financial remedy for Mrs Z which we consider is fair. We have recommended apologies for Mrs Z and service improvements. The organisations concerned accept our recommendations. We have therefore completed our investigation.

The complaint

  1. The complainant, whom I shall call Mrs Z, complains about matters affecting her late father, Mr X. She complains that:
    • Shrewsbury and Telford Hospitals NHS Trust (SATH) failed to make social services, the ‘Rapid Assessment Interface and Discharge’ (RAID) service and Mr X’s GP aware that Mr X had terminal illnesses and failed to diagnose other illnesses;
    • SATH failed to treat Mr X’s illnesses appropriately;
    • SATH, Midlands Partnership NHS Foundation Trust (MPFT)’s RAID service, and the Council communicated poorly with Mr X and his family;
    • SATH, acting for Telford & Wrekin Clinical Commissioning Group (the CCG), wrongly assessed Mr X as not being eligible for NHS continuing healthcare funding (CHC). This led to a failure to recognise that Mr X needed nursing care on discharge from hospital;
    • SATH and/or MPFT failed to assess or diagnose Mr X’s cognitive impairment, act on symptoms of mental illness or cognitive impairment or contact his GP to advise further investigation;
    • following a flawed mental capacity assessment and without a vision assessment, Mr X was wrongly discharged from hospital to his own home, into unsanitary and ‘hoarded’ conditions and without palliative care for his terminal cancer. This was contrary to assurances given to his family that he would be discharged for a short stay in a nursing home while his home was made habitable; and
    • the complaint handling by SATH (acting for itself, MPFT, the CCG and the Council) was flawed.
  2. Mrs Z says that as a result:
    • Mr X suffered unnecessary discomfort while in hospital;
    • Mr X spent the last 11 months of his life without suitable care, in unsanitary conditions, struggling with poor vision and distressing symptoms, and dying alone on the floor; and
    • Mr X’s family had to try to care for him themselves. They felt guilty they could not do so all the time, and were upset by the conditions they witnessed him living in as well as the circumstances of his death.

Back to top

The Ombudsmen’s role and powers

  1. 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)
  2. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
  3. 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).
  4. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  5. The Ombudsmen cannot question whether an organisation’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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  6. The Ombudsmen may investigate, and question the merits of, action taken in the exercise of clinical judgement.
  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. 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)

Back to top

How I considered this complaint

  1. Mrs Z was aware of some of the matters she complains about since February-April 2017, more than 12 months before she complained to the Ombudsmen in February 2019. This means that parts of her complaint to us are ‘late’. We have decided there are good reasons to investigate her complaint even though it is late. This is because:
    • local complaint resolution took a long time;
    • the final few months of Mr X’s life and the aftermath of his death were difficult for Mrs Z to cope with; and
    • Mrs Z had a health problem which delayed her ability to complain to the Ombudsmen.
  2. I have considered the following evidence:
    • information provided by the complainant by telephone and in writing;
    • copies of medical records provided by the complainant;
    • recordings and photographs provided by the complainant;
    • written information provided by the Council, CCG, SATH and MPFT;
    • medical, social care and complaint records provided by the Council, SATH and MPFT; and
    • clinical advice from a nurse specialising in CHC assessments, a psychiatric nurse and a doctor specialising in gastroenterology.
  3. The complainant, Council, CCG, SATH and MPFT have had an opportunity to comment on a draft version of this decision. The complainant, Council, CCG, and SATH have provided comments and I have taken them into account before reaching a final decision.

Back to top

What I found

Background summary

  1. Mrs Z says that:
    • before he went into hospital in February 2017, Mr X lived alone in a house he owned;
    • the house had a large debt secured on it and was very neglected and dirty; and
    • Mr X lived reclusively and would not seek medical help.
  2. In February 2017, a relative calling on Mr X found him in a very poorly state following a fall. An ambulance took Mr X, who was 82, to a SATH hospital. In the first few days of his hospital admission, Mr X was seriously ill with biliary sepsis. This is a serious complication of an infection of the organs and ducts that make and store bile, a fluid that helps digest fat. Mr X was not expected to recover. Although he recovered from the sepsis, he had a suspected ampullary tumour [a tumour in the area where the pancreatic and bile ducts meet; it can cause jaundice]. Mr X remained in hospital under the care of SATH’s gastroenterology team [doctors that deal with disorders of the digestive system]. He was also seen by MPFT’s liaison psychiatry team, RAID.
  3. Mr X was discharged home from hospital in April 2017. Mr X insisted he wanted to be discharged to his own home without a care package. This was against the advice of professionals and his family. Professionals and family all considered that Mr X’s home was unsafe without cleaning and decluttering, and that Mr X needed support from carers. Mrs Z disagrees with professionals’ view that Mr X had mental capacity to make his own decisions.
  4. Mr X lived in his own home for about 11 months after leaving hospital. He agreed to some help from his family and a gardener but became increasingly reclusive. He died at home in early March 2018 and was discovered by his family in distressing circumstances. A post-mortem examination concluded the cause of his death was cachexia [a complex process associated with some cancers, it causes irreversible muscle and weight loss] and cancer of the pancreas that had spread.

A – SATH: making social services, RAID and GP aware that Mr X had terminal illnesses; diagnosis of other illnesses; treatment

  1. Mr X was admitted to hospital with jaundice. Examination and tests revealed cachexia, dehydration, abnormal liver results and signs of inflammation or infection. Mr X was treated for sepsis, likely due to a blockage within the ducts (pipes) that drain bile from the liver and into the gut. A CT (computerised tomography) scan [uses X-rays and a computer to make detailed images inside the body] confirmed Mr X’s bile ducts were swollen due to an obstruction, the most likely cause being a cancer in the head of the pancreas. The doctors treating Mr X considered he was too frail to undergo an invasive procedure that could take a sample to confirm a definitive diagnosis of cancer.
  2. Mrs Z complains that SATH failed to make social services, RAID and Mr X's GP aware that Mr X had cancer and cachexia. The available records indicate the hospital social workers and RAID had access to Mr X’s medical notes in hospital and were aware of his weight loss and the strong likelihood that he had cancer. The discharge summary sent to Mr X’s GP practice includes reference to weight loss, that scans indicated a tumour in the head of the pancreas and that the advice was for ‘best supportive care’ (care that helps the patient and people important to them cope with life-limiting illness). I therefore consider that SATH did inform social services, RAID and Mr X's GP practice of Mr X’s cancer and weight loss. The discharge summary indicated that Mr X’s condition was not treatable. So, I do not uphold this part of the complaint.
  3. The discharge summary contained the wrong name for Mr X’s GP. SATH has already apologised to Mrs Z for this error and I consider that this is a suitable way to resolve this issue.
  4. The discharge summary did not:
    • state that professionals identified a need for extra support at home which Mr X had refused; or
    • suggest the GP should consider a referral to palliative care services to help manage the symptoms of Mr X’s cancer when the need arose. Palliative care is care toward the end of life that aims to provide relief from pain and other distressing symptoms, as well as supporting psychological and spiritual needs.
  5. This was contrary to the General Medical Council’s (GMC’s) guidance ‘Good Medical Practice’, which says it is important for doctors to communicate with other doctors involved in a patient’s care in a clear and timely way, to ensure good continuity of care and follow-up. This was fault. Although this could have made it more difficult for the GP practice to arrange home visits and palliative care for Mr X, I consider that it did not cause Mr X an injustice. This is because Mr X had a history of not wishing to engage with his GP and this continued after his discharge from hospital. I consider it more likely than not that a more detailed discharge summary would not have changed this. I have recommended service improvements to avoid similar fault affecting others.
  6. Mrs Z also complains that SATH failed to diagnose and treat the following illnesses, identified during a post-mortem examination of Mr X:
    • complicated severe atheroma of the infra-renal aorta (plaque or ‘furring’ of the main artery in the body below the main blood vessels that supply the kidneys, ‘complicated’ means this may have bled or partially ruptured);
    • sigmoid diverticular disease (development of pockets within the bowel wall; ‘sigmoid’ refers to the section of the bowel just before the rectum); and
    • an enlarged and nodular prostate.
  7. SATH identified ‘moderate sigmoid diverticular disease’ during Mr X’s hospital admission and stated this on the discharge summary.
  8. The discharge summary does not mention atheroma or an enlarged prostate. Therefore, I consider that SATH did not:
    • identify Mr X’s atheroma and prostate enlargement; or
    • treat these and his diverticular disease;
  9. However, this was not fault and did not cause Mr X an injustice because:
    • atheroma is common in major blood vessels, especially with ageing;
    • the presence of a complicated atheroma would not necessarily cause symptoms or need treatment;
    • there is no indication in the available records that Mr X needed treatment for the atheroma;
    • Mr X’s atheroma, diverticular disease and prostate enlargement would not need further investigation unless they caused specific symptoms; and
    • the available records indicate that these findings would not have had an impact on Mr X’s hospital treatment or discharge planning. This is because they did not contribute in a significant way to his health and were more likely than not unrelated to his suspected cancer.

B – SATH, MPFT and the Council: communication with Mr X and his family

  1. Mrs Z says that SATH, MPFT’s RAID team and the Council communicated poorly with Mr X and his family. She is concerned that because of poor communication, Mr X:
    • did not have a clear understanding of his condition;
    • believed he would need to pay for any care after he was discharged from hospital; and
    • as a result refused to accept care that he needed and should have received free of charge.

SATH

  1. When Mr X was first admitted to hospital, he was seriously ill and confused. At that point, his ability to understand and discuss his medical condition was limited. However, this improved during his hospital admission. There are no records of SATH doctors discussing with Mr X his diagnosis, treatment options and what his wishes might be. He told RAID staff and his family that doctors had not discussed this with him and records of RAID’s discussions with him indicate he was unaware of his prognosis (medical opinion of the likely course of an illness). SATH says that the doctor in charge of Mr X’s hospital treatment did discuss his condition and prognosis with Mr X, although he did not make a record of this.
  2. GMC’s ‘Good Medical Practice’ says that doctors need to form partnerships with patients and involve them in making decisions as far as practicable, and that patient records must include the information given to patients. The Nursing and Midwifery Council’s (NMC’s) ‘The Code, Professional standards of practice and behaviour for nurses and midwives’ says that nurses must communicate clearly. Both sets of guidance also say that clinical records must be:
    • clear and accurate; and
    • made at the same time as the events recorded or as soon as possible afterwards.
  3. While we cannot say that SATH doctors did not discuss Mr X’s condition and prognosis with him, the level of recorded communication with him fell short of GMC’s guidance and was therefore fault.
  4. SATH’s medical records show that doctors and nurses discussed Mr X’s condition and prognosis with his family, but they do not include details of what they discussed with the family. Again, this is contrary to GMC’s and NMC’s guidance and therefore fault.
  5. Mrs Z has provided call recordings to us as evidence, including conversations with nursing staff. These do not show any fault by nursing staff.
  6. SATH and the doctor in charge of Mr X’s hospital treatment have already apologised to Mrs Z for the poor documentation. SATH has also apologised for problems Mr X’s family had in getting information from nurses despite having set up a password to confirm they were entitled to this information. This is an appropriate way for SATH to address Mrs Z’s injustice this part of the complaint. I have made a recommendation below for SATH to review its medical record keeping to prevent similar faults causing problems to others.

MPFT

  1. Documents from MPFT’s RAID team record detailed discussions with Mr X and Mrs Z. These discussions informed RAID’s assessment of Mr X’s mental health and cognition. The records indicate RAID’s communication with Mr X and Mrs Z was clear and open. The RAID team also attempted to contact Mrs Z to discuss the findings of a fact finding assessment. Therefore, I consider that MPFT’s RAID team communicated appropriately with Mr X and Mrs Z and recorded this appropriately.

Council

  1. According to the Council’s computerised social care records, the following key events happened.
    • SATH referred Mr X to the Council’s hospital social work team on 23 March 2017.
    • On 27 March 2017, the hospital social worker (SW1) was asked to assess
      Mr X’s capacity to decide where he wanted to be discharged. This was because Mr X wanted to make an apparently unwise choice to go home when discharged from hospital. SW1 read Mr X’s medical notes, observed a nurse speaking to him and spoke with him herself. She then had a telephone call with Mrs Z. SW1’s note of the call says she explained to Mrs Z that Mr X appeared to have capacity to decide where to be discharged to. SW1 then asked the hospital to arrange a meeting between Mr X, his family and doctors, so that
      Mr X could be informed about his health.
    • On 28 March 2017, SW1 met Mr X again and he recalled their meeting the day before. They discussed the state of his house and help he might need when he left hospital. SW1’s note says she started to talk to him about discharge to a “D2A” (discharge to assess) bed while his home was cleaned. This is usually a bed in a care home and is free of charge while a council and/or the NHS assesses a person. SW1’s note says that Mr X agreed to consider this as a possibility, but would not agree to actually go to a nursing home.
    • On 29 March 2017, SW1 visited Mr X again. SW1’s note says Mr X said he would not go into a temporary placement willingly. SW1 also noted that Mr X had less money than the threshold over which people can be charged for care.
    • On 30 March 2017, SW1 saw Mr X again. SW1’s note says Mr X refused a D2A bed.
    • On 5 April 2017, there was a telephone conversation between Mrs Z’s husband (Mr Z) and another social worker, SW2. The note of the call says that Mr and Mrs Z were upset because they felt SW1 had breached their confidentiality by discussing their reports of the state of Mr X’s house with Mr X. They also felt the Council had acted unlawfully by discussing financial matters with Mr X before a CHC checklist had been done. They therefore refused to have any further involvement with the Council’s adult social care services.
    • Another social worker (SW3) spoke with Mr X on 10 April 2017. Mr X was still resolute he wanted to go home and reluctantly agreed for SW3 and an occupational therapist (OT) to visit and assess his home. SW3’s note says she had no reason to doubt his capacity. SW3 also noted that according to RAID there was no diagnosis of a disturbance of mind, and the psychiatrist did not feel Mr X lacked capacity. SW3 invited Mrs Z to the meeting to discuss Mr X’s discharge but Mrs Z declined.
    • On 12 April 2017, the hospital hosted a multidisciplinary team (MDT) discharge meeting involving Mr X, SW3, the ward manager, the OT, and a RAID staff member. At that meeting, Mr X agreed to some assistive technology (a falls alarm and a pendant alarm) and two carer visits a day. He also agreed to SW3 looking into having his toilets unblocked and referring him to local charities who may be able to support him.
    • On 13 April 2017, another social worker (SW4) saw Mr X. He refused to have any home care arranged for him. The only help he would agree to was having his toilets unblocked.
  2. I have reviewed the evidence Mrs Z has provided, including call recordings. This supports the documentary evidence supplied by the Council.
  3. Mrs Z did not want Mr X to know she had spoken to professionals about his home conditions because she did not want to damage her relationship with her father. Mr X’s family and health care professionals were all concerned about the prospect of him returning home without help and without the house being deep cleaned. The social worker and OT needed Mr X’s consent to visit and assess his house. In these circumstances, it was appropriate that his social worker discussed Mrs Z’s concerns about the state of Mr X’s house with him.
  4. Mrs Z considers the Council told or suggested to Mr X that he would need to pay for any care he received when he left hospital, leading him to refuse all care because he could not afford it. Mrs Z believes the Council acted unlawfully in discussing finances with Mr X in March 2017, before the hospital completed a CHC checklist the following month. This is because a person cannot be charged for the costs of their NHS CHC care package, whereas a Council can ask a person to pay towards the cost of their social care, if their capital is over a certain amount.
  5. Care and Support Statutory Guidance (CSSG) issued by the Government says the approach to charging for care and support needs should be clear and transparent. This means that it is not fault for the Council to discuss finances with Mr X before a CHC checklist is completed. The available evidence indicates that:
    • the Council did not tell Mr X, or suggest to him, that he would need to pay for home carers or residential care;
    • the Council did not formally assess Mr X’s finances because he had refused a care package. However, the Council noted that he was unlikely to have enough capital to be charged for care;
    • the Council informed Mr X at least twice about a free of charge D2A placement where he could go temporarily while his house was cleaned; and
    • Mr X refused the free D2A placement and any help other than having his toilets unblocked.
  6. I have found no fault in the way the Council communicated with Mr X and his family. The available evidence shows Mr X had enough information to make an informed decision about his care on leaving hospital. Although he made a decision everyone else considered unwise, this is not because of fault by the Council.

C – SATH acting on behalf of the CCG: CHC

CHC checklist

  1. Mrs Z complains that SATH incorrectly assessed Mr X as not being eligible for CHC, leading to a failure to recognise that Mr X needed nursing care on discharge from hospital.
  2. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate. FNC does not apply to care in people’s own homes.
  3. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC or FNC and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
  4. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The decision to complete a CHC checklist or a full assessment does not indicate that a person is eligible for CHC or FNC.
  5. The DST makes a recommendation about whether a person is eligible for CHC or for FNC. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances. If the outcome of the Checklist is not to carry out a full assessment, the CCG should ensure the person gets a copy of the checklist and information about how to ask the CCG to reconsider the decision.
  6. SATH completed a CHC checklist for Mr X on the CCG’s behalf. Based on this, SATH decided that Mr X should not have a full assessment using a DST.
  7. SATH used a standard CHC checklist form. This has 11 ‘domains’: behaviour; cognition; psychological/emotional; communication; mobility; nutrition; continence; skin integrity; breathing; drug therapies and medication; and altered states of consciousness. For each domain, the assessor considers a person’s needs against the descriptors on the NHS CHC checklist form, and selects whichever level (A, B or C) most closely matches the person’s needs. Level C indicates no or minimal need whereas level A indicates significant needs that require skilled intervention or a significant level of supervision. A full DST assessment is required if the checklist indicates there are:
    • two or more domains at level A;
    • five or more domains at level B, or one level A and four at level B; or
    • one ‘priority’ domain at level A with any number of other domains at B or C. ‘Priority’ domains are: breathing; behaviour; drug therapies and medication; and altered states of consciousness.
  8. SATH held a meeting with Mr X and Mrs Z on 6 April 2017, at which an staff member completed part of the standard CHC checklist form. The assessor:
    • considered the domains related to breathing, nutrition, continence, skin integrity, mobility, medication and altered states of consciousness while Mr X and Mrs Z were present; and
    • relied on a ‘fact-finding assessment’ (FFA) completed by MPFT’s liaison mental health nurse for the domains relating to communication, psychological/emotional needs, cognition and behaviour. The structure of the FFA is based on the CHC checklist form for those domains; and
    • decided that Mr X scored a ‘C’ for all domains.
  9. I consider that there were faults in how SATH completed the checklist on behalf of the CCG because:
    • the front sheet was not completed and there are no personal details in it;
    • the form was undated and did not contain the details of the assessor;
    • Mr X’s details were not entered until part way through the form;
    • the form contains conflicting information about Mr X’s mental capacity;
    • there was evidence in the medical records made between 15 and 28 March for Mr X to score a ‘B’ rather than a ‘C’ in the cognitive domain;
    • there is no outcome or rationale recorded at the end of the form;
    • the form does not indicate whether a full assessment is required or not; and
    • a copy of the checklist was not sent to Mr X with information about how to ask the CCG to reconsider the decision not to carry out a full assessment.
  10. However, I also consider that:
    • the conclusions about the individual domains were based on medical and nursing records;
    • all the domains apart from the cognitive domain were scored appropriately and in accordance with relevant guidance;
    • the available evidence indicates that Mr X had capacity to decide on his discharge destination by the time the CHC checklist was completed (see section E below); and
    • a score of ‘B’ rather than a ‘C’ in the cognitive domain would have made no difference to the overall outcome.
  11. This means that even if the Checklist had been completed without fault, the outcome would have been the same: not to carry out a full CHC assessment.
  12. The available evidence also indicates that Mr X had no need for nursing care at the time he was discharged from hospital.
  13. Therefore, the faults in the CHC checklist process did not cause Mr X an injustice.
  14. I have made recommendations below to SATH and the CCG to improve their CHC checklist process to avoid similar faults causing problems for other patients.

CHC fast track pathway

  1. The fast track pathway enables terminally ill people who need NHS CHC to access it quickly, without the need to complete a checklist or DST. Having a terminal diagnosis is not enough on its own to make a person eligible for CHC via the fast track pathway. Their doctor must consider that they need a CHC care package because their condition is getting worse quickly and they may be nearing the end of their life.
  2. During the first few days of Mr X’s stay at hospital, he was so unwell that SATH doctors considered he was likely to die soon and may be eligible for the CHC fast track pathway. However, Mr X’s condition improved. Although Mr X was still terminally ill, SATH no longer considered that his condition was deteriorating rapidly or that he was getting close to the end of his life. It therefore did not use the CHC fast track pathway. This was not fault, for the following reasons.
    • The available records all indicate that, while Mr X still had a terminal illness, he improved after recovering from sepsis and his condition was not worsening quickly.
    • The CHC checklist SATH completed in April 2017 confirms that Mr X did not have the high level of health needs that would meet the criteria for CHC funding. I have explained above why I considered the CHC checklist conclusion was appropriate, even though the way in which it was completed was flawed.

D – SATH and MPFT: mental illness/cognitive impairment

  1. Mrs Z complains that SATH and/or MPFT failed to assess or diagnose Mr X’s cognitive impairment, act on symptoms of mental illness/cognitive impairment or contact his GP to advise further investigation.
  2. Cognitive impairment is where someone has problems with their mental abilities such as memory and thinking. The Alzheimer’s Society describes mild cognitive impairment as a condition where somebody has minor problems with cognition which are worse than would normally be expected for a healthy person their age. However, the symptoms are not severe enough to interfere with daily life, so are not defined as dementia.
  3. While Mr X was in hospital, SATH’s gastroenterology doctors were in charge of his care. Their main role is dealing with disorders of the digestive system, rather than assessing and diagnosing mental illness or cognitive impairment. This was the role of MPFT’s RAID team. In response to concerns about possible mental illness and cognitive impairment, SATH arranged for an assessment by the RAID team. This was an appropriate response from SATH and not fault.
  4. MPFT’s RAID team had contact with Mr X on five occasions between 22 March and 4 April 2017. The RAID mental health nurse saw Mr X four times and made clinical observations and assessments. I have summarised the nurse’s assessments below.
    • 22 March 2017, when the nurse completed the FFA. She noted that: Mr X seemed fairly well oriented although accepted he sometimes got lost coming back from the toilet; could follow a conversation but was suspected to be confabulating [making up stories as compensation for loss of memory]; had unrealistic opinions of his own ability and seemed to be making unwise choices. The RAID nurse considered the hospital social worker should carry out a capacity assessment because of this.
    • 27 March 2017, when the nurse noted Mr X was well oriented, remembered her visit the week before and was able to have a conversation about his home and how he shops. The RAID nurse also noted that Mr X was unaware of his prognosis or that he had been deemed terminally ill. The RAID nurse discussed this with the hospital social worker who said she would ask the medical team to speak with Mr X about his diagnosis and prognosis. The RAID nurse also requested a CT (computerised tomography) head scan [uses X-rays and a computer to make detailed images inside the body] to rule out metastases [cancer that has spread to other parts of the body].
    • 28 March 2017, when the nurse considered that Mr X had rehearsed speeches about how he was going to cope at home following discharge and that he sometimes struggled to answer questions outside the apparently rehearsed topics. She also considered Mr X was confabulating about some events and had an unrealistic expectation of what would happen on discharge.
    • 31 March 2017, when on the advice of MPFT’s RAID psychiatrist she did tests to check the functioning of parts of Mr X’s brain. She considered Mr X was able to hold a conversation using complex words, but struggled to explain some events. She noted he admitted having ‘waking dreams’ at night, which he considered normal for him. He also told her he ordered a complementary medicine online and believed he needed no other medication. The RAID nurse noted that Mr X spoke of some of the poor conditions in his home and was unrealistic about his ability to maintain his home. He also told the nurse that Mrs Z was happy for him to go home, something Mrs Z disagreed with when the nurse checked with her. The nurse asked MPFT’s RAID psychiatrist to assess Mr X.
  5. MPFT’s RAID psychiatrist met with Mr X on 4 April 2017. The psychiatrist assessed Mr X’s memory. He also noted that the test results were normal and there was nothing to suggest Mr X had psychotic symptoms at that time. The NHS describes psychosis as loss of contact with reality, which might include seeing or hearing things that others cannot see or hear (hallucinations) and believing things that are not true (delusions). The psychiatrist concluded there were no major mental health issues.
  6. In summary, the MPFT RAID team’s records indicate that Mr X may have confabulated and had poor memory, possibly linked to alcohol use. However, having carried out tests, requested a CT scan and made clinical observations, MPFT’s RAID team did not identify any mental illness or cognitive impairment that was severe enough to interfere with daily life.
  7. I have found no fault in the way MPFT’s RAID team investigated whether Mr X had a mental illness or cognitive impairment. This is because MPFT carried out:
    • consistent and continuing clinical observation and assessment of Mr X; and
    • a fact-finding assessment based on the relevant domains of the NHS continuing healthcare checklist.
  8. MPFT’s RAID mental health nurse considered on 28 March 2017 that Mr X would benefit from a referral for an assessment by memory services. However, the nurse decided this was not necessary after seeing him again and after the psychiatrist had assessed Mr X. This was because tests did not indicate any specific cognitive decline, Mr X appeared oriented and able to function when he wanted to, and was considered to have the capacity to make his own decisions. I have found no fault in the way MPFT decided not to refer Mr X to memory services.
  9. MPFT has already accepted that it should have written to Mr X’s GP following discharge but did not do so because of an administrative error. The fault did not cause Mr X an injustice because:
    • the hospital mental health professionals did not consider he had a mental illness or needed further investigation following discharge from hospital;
    • the information in Mr X’s clinical records does not indicate that he needed a referral for any specialist mental health services at the time of his discharge from hospital;
    • SATH sent the GP practice a discharge summary stating ‘No obvious psychiatric disorder noted’; and
    • based on information provided by Mrs Z, Mr X was unlikely to engage with his GP in further investigations of mental illness or cognitive impairment.

E – SATH, MPFT and Council: decision to discharge Mr X from hospital to his own home

  1. Mrs Z complains that:
    • Mr X was wrongly discharged from hospital to his own home following a flawed mental capacity assessment and without a vision assessment;
    • he went home into unsanitary and 'hoarded' conditions and did not get palliative care for his terminal cancer; and
    • this was contrary to assurances given to his family that he would be discharged for a short stay in a nursing home while his home was made habitable.

Mental capacity assessments

  1. 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.
  2. Both the MCA and the Code say a person must be presumed to have capacity to make a decision unless there is proof to the contrary. 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.
  3. There is no medical diagnosis that automatically means someone lacks capacity. People’s capacity to make decisions can change over time. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required. A Council or NHS organisation must assess a person’s ability to make a decision, when that person’s capacity is in doubt. How they assess capacity may vary. Consideration of capacity must always be specific to the decision to be made at a particular time.
  4. When assessing somebody’s capacity, the Code says that assessor must consider:
    • whether the person has “an impairment of the mind or brain, or some sort of disturbance that affects the way their mind or brain works”. If no such disturbance or impairment is present, the person does not lack capacity under the MCA; and
    • if there is an impairment or disturbance, does it mean that the person cannot make a specific decision when they need to?
  5. Paragraphs 71 to 72 of the General Medical Council’s ‘Good Medical Practice’ (2013) relate to the issue of mental capacity. It says doctors must take account of the MCA and the Code. Point 16 of the Nursing and Midwifery Council’s ‘The Code: Standards of conduct, performance and ethics for nurses and midwives’ (2008) is also relevant. This says that nurses must be aware of the legislation about mental capacity.
  6. Records indicate that
    • Mr X was so unwell when first admitted to hospital that he lacked capacity to make any decisions about his treatment and discharge;
    • a hospital doctor carried out a mental capacity assessment on 16 March 2017 and decided Mr X did not have the capacity to make decisions about his discharge destination;
    • a RAID psychiatrist assessed Mr X on 4 April 2017 and considered Mr X had the capacity to make all decisions; and
    • the Council’s hospital social workers met with Mr X five times between 27 March and 10 April 2017 and had detailed discussions with him. Having done so, the Council considered Mr X had capacity to decide on his discharge destination.
  7. A SATH hospital doctor assessed Mr X’s capacity to decide on a discharge destination on 16 March 2017. The doctor used SATH’s mental capacity assessment form to record their consideration. The record of the assessment is flawed because:
    • it does not explain why the doctor considered Mr X had an impairment or disturbance of the mind or brain; and
    • it does not record how the doctor has checked Mr X had all the relevant information to make a decision, or what steps they took to help Mr X make the decision.
  8. We cannot say now whether Mr X did or did not have capacity to make a decision about discharge on 16 March 2017. This is because his capacity was specific to that time and that decision, and we cannot now reassess it retrospectively. I have made a recommendation below for SATH to review its recording of mental capacity assessments and to address any flaws and training needs the review identifies.
  9. SATH referred Mr X to MPFT’s RAID team for a fact-finding assessment (FFA) on 22 March 2017. I have already summarised the observations the RAID mental health nurse made in section D above.
  10. MPFT’s RAID psychiatrist met with Mr X on 4 April 2017. He noted Mr X was aware of public figures of the day and recalled who the psychiatrist was part way through the assessment. The psychiatrist noted that the brain functioning tests were normal and there was nothing to suggests Mr X had psychotic symptoms. The psychiatrist concluded there were no major mental health issues to affect
    Mr X’s capacity and that he could make his own choices, even if they were unwise.
  11. MPFT’s RAID psychiatrist followed the correct process for assessing Mr X’s capacity and there are no grounds for us to question his conclusions. This is because:
    • having taken note of the results of medical tests and having spent time assessing Mr X face-to-face, the psychiatrist could find no evidence that at the time, Mr X had an impairment of the mind or brain; and
    • the psychiatrist then acted in accordance with the MCA by concluding that this meant that Mr X did not lack capacity under the MCA.
  12. A hospital social worker (SW1) met Mr X on 27 March 2017. Her case notes record a detailed discussion with him about his past, his current home situation, his finances including involvement in online gambling, and how he felt about going into a care home. In a note of a telephone call with Mrs Z later that day, the social worker states that she felt, based on an initial meeting with Mr X, that he could make decisions about his discharge but was unrealistic about his ability to go home without help. After that telephone call, the social worker notes she discussed with the RAID mental health nurse that Mr X did not seem to have information about his medical situation. The social worker considered this may be contributing to Mr X making unwise decisions, and that having medical information from doctors may enable him to be more realistic.
  13. SW1 met Mr X three more times between 28 and 30 March 2017. She also contacted the ward for medical updates. On 10 April 2017, the Council decided to re-allocate Mr X’s case to a more senior social worker, SW3. SW1’s handover note says she would recommend a mental capacity assessment if the medical assessments indicated a cognitive impairment. SW3 visited Mr X on the same day and spoke with him. She documented that she had no reason to doubt his capacity and that the recent RAID assessment had found no disturbance to the functioning of his mind.
  14. There is no fault in the way the Council considered Mr X’s capacity to decide on his discharge destination. This is because social workers:
    • took into account Mrs Z’s and the RAID nurse’s concerns and spent time speaking with Mr X over several days;
    • acted in accordance with the MCA by assuming Mr X had capacity to make his own decisions and took steps to help him make the decision about discharge destination; and
    • acted in accordance with the MCA by concluding that, in the absence of an impairment or disturbance of the brain or mind, Mr X had the capacity to make unwise decisions.
  15. As there was no fault in the way the Council considered Mr X’s capacity to decide on his discharge destination, the Ombudsmen cannot question the Council’s decision.

Lack of vision assessment

  1. Mrs Z has told us that:
    • Mr X was nearly blind; and
    • she raised concerns with professionals about his vision, but it was not assessed before he was discharged from hospital.
  2. A nursing record dated 15 March 2017 says Mrs Z raised concerns about Mr X’s vision and that a nurse would ask doctors to consider referring him to the eye department. There is no record of what the nurse did following this. An FFA referral by Mr X’s hospital ward dated 23 March 2017 states that he has very poor eyesight. The nursing records contain contradictory entries about Mr X’s vision impairment. For example, a falls risk assessment dated 24 February 2017 states Mr X does not have a vision impairment. A nursing assessment dated 25 February 2017 and reviewed three times between 9 March and 3 April 2017 says Mr X uses glasses but does not have poor eyesight.
  3. The inconsistent record keeping and lack of documentation about what SATH did in response to Mrs Z’s concern of 15 March 2017 were contrary to NMC’s ‘The Code’ and therefore fault. SATH has already apologised to Mrs Z for not giving her a clear explanation in response to her concerns. I consider this is a fair way to address Mrs Z’s complaint. I have made recommendations for SATH to review its record keeping, to prevent similar faults causing problems to others.
  4. The lack of vision assessment while Mr X was in hospital was not fault because:
    • the physiotherapy, occupational therapy and RAID teams also assessed Mr X while he was in hospital. None of these professionals raised concerns about
      Mr X’s vision having an impact on his ability to cope at home following discharge; and
    • Mrs Z organised a sight test for Mr X at home in May 2017. Copies of opticians’ records from May 2017 provided by Mrs Z contain a glasses prescription and do not state that Mr X was nearly blind.

Discharge to unsuitable home conditions despite assurances of a temporary care home placement

  1. SATH and the Council were jointly responsible for Mr X’s discharge from hospital.
  2. There is no doubt that Mr X’s home was extremely cluttered, unhygienic and without access to hot water or central heating. Records provided by Mrs Z, NHS Trusts and the Council indicate that Mr X’s family and all the professionals involved in his discharge were concerned about his home conditions and how he would cope at home without a care package. Hospital social workers offered Mr X both a free stay in a D2A placement in a care home and a care package in his own home. Mr X refused both. The only help Mr X would accept at the time he was discharged from hospital was for the Council to arrange to have his toilets unblocked.
  3. Mr X did not meet the criteria under the MCA to be deemed lacking capacity to make decisions about his discharge. Therefore, SATH and the Council acted without fault in arranging for him to be discharged to his own home.

Discharge home without palliative care

  1. Palliative care teams are available in hospitals and the community. A common reason for a referral is advanced cancer in people who are likely to be in their last year of life. Palliative care teams have expertise in managing difficult to control symptoms such as pain and nausea, as well as addressing psychological and spiritual needs.
  2. There is no evidence SATH discussed making a referral to palliative care services with Mr X. It also did not advise Mr X’s GP to do so in the discharge summary. I consider that this was fault because:
    • the medical team at SATH strongly suspected Mr X had untreatable cancer at a terminal stage, which meant he was probably in the last year of his life;
    • it is possible that Mr X and his family could have benefited from a referral to the palliative care team either while Mr X was in hospital or when he was discharged; and
    • NICE guidance on improving supportive and palliative care for adults with cancer advises that people who may benefit from specialist palliative care are referred without delay.
  3. As a result, there was a lost opportunity to explore with Mr X whether he wanted to engage with palliative care services. These may have been able to work with Mr X to identify and manage some of the difficulties he experienced after his discharge from hospital, had he been willing to accept their support.
  4. I have made recommendations below for SATH to apologise to Mrs Z and to review its policy on palliative care referrals to prevent similar problems affecting others.

F – Complaint handling

  1. Mrs Z says the complaint handling by SATH (acting on behalf of itself, MPFT, the CCG and the Council) was flawed.
  2. The complaints procedure for councils and NHS organisations is set out in the Local Authority Social Services and NHS Complaints (England) Regulations 2009. Under the regulations, anyone who is dissatisfied with a decision made by a council or NHS body can make a complaint about that decision and have the complaint handled by the Council or NHS.
  3. Regulation 8 says that a council or NHS body does not need to investigate a complaint the subject matter of which has previously been investigated under the Regulations.
  4. Regulation 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.

2017 complaints

  1. Mr X’s family first complained to SATH in March 2017. SATH closed this complaint on 27 March 2017 following contact from the family.
  2. Mrs Z complained again by email on 3 April 2017. She added to her complaint on 18 May 2017. SATH had obtained consent from Mr X for Mrs Z to complain on his behalf about the hospital on 13 April 2017, but it had omitted to confirm with him that he also agreed with the complaint about social services. SATH apologised for this and got Mr X’s consent on 2 June 2017.
  3. SATH initially approached a different local authority in error with the social services complaint. SATH says it contacted Mr X’s family to inform them of this on 5 July 2017 and offered to ask the Council to respond to the social services part of the complaint separately, but the family confirmed they would prefer a joint response.
  4. SATH says it sent the complaint to the Council on 6 July 2017 and that the Council deleted the email in error. The Council says it first received information about Mrs Z’s complaint from SATH on 24 July 2017.
  5. Mrs Z raised further concerns about RAID on 8 August 2017. SATH shared these with RAID and received RAID’s comments on 21 August 2018.The Council sent SATH a response on 30 August 2017. SATH included this in its joint response of 13 September 2017.
  6. The complaint response of 13 September 2017 stated staff were spoken to about their approach to relatives and would be given training on accountability. The letter apologised for the behaviour of specific staff members and for flaws in communication. Mrs Z did not respond to this letter at the time. When complaining further in 2018 and onwards, Mrs Z considered the response of 13 September 2017 inaccurate and incomplete. While Mrs Z disagrees with the content and tone of the letter of 13 September 2017, I have found no significant flaws in it and that the apologies and explanations in the letter are appropriate.
  7. I have found that:
    • there was fault in the communication about the complaint between SATH and the Council;
    • SATH acted with fault in delaying getting full consent from Mr X and contacting the wrong local authority about the social services part of the complaint;
    • Mrs Z added further information to her complaint in May and August 2017;
    • all these contributed to the time it took to issue a complaint response in September 2017;
    • as a result of a 2019 internal review the Council has already taken appropriate steps to address its contribution to Mrs Z’s injustice and improve its complaints processes;
    • SATH has already apologised to Mrs Z for the delay in sending her a final response and this is an appropriate remedy for Mrs Z’s injustice; and
    • SATH says it has updated its consent processes since this time.
  8. I have made recommendations below for SATH to provide evidence of this and make further service improvements to prevent similar problems affecting others.

2018 complaint

  1. Following Mr X’s death in 2018, Mrs Z complained to SATH and the Council again. Although complaining about the same key issues, Mrs Z wanted more detailed answers about what happened. SATH received the complaint on 4 June 2018. The Council received Mrs Z’s letter, which had been addressed to a different local authority, on 21 June 2018. SATH again coordinated the response to this complaint.
  2. SATH says it contacted MPFT and the Council on 12 June 2018 about this complaint.
  3. MPFT says SATH contacted it on 29 June 2018 and asked for a response by
    19 July 2018. MPFT says that it received a further letter from Mrs Z on 27 July 2018. MPFT sent SATH its response on 16 August 2018, about a month after the date by which SATH had requested it. MPFT’s delay in responding to SATH’s request for information was not fault, because MPFT needed time to consider
    Mrs Z’s further letter, which it received on 27 July 2018. SATH sent MPFT a draft joint response to Mrs Z’s further complaint on 11 September 2018 and MPFT agreed this on 19 September 2018.
  4. The Council sent a brief response to SATH on 10 September 2018. SATH asked the Council for further information which the Council provided on around 25 or 26 October 2018. The Council carried out its own review in 2019 which has already identified that its response of 10 September 2018 did not provide the information needed for a comprehensive response to Mrs Z’s complaint and this has led to Mrs Z experiencing avoidable time, trouble and delay in getting a comprehensive response to her complaint.
  5. SATH sent Mrs Z a response to her complaint of May/June 2018 on 5 November 2018. In this response, SATH apologised for problems with communication and documentation relating to Mr X’s care. The response does not answer every question Mrs Z asked. However, I consider that there are no significant faults in the response and that it provides adequate answers and apologies for the problems it identifies.
  6. I have found that:
    • there was fault in the communication about the complaint between SATH and the Council which led to Mrs Z experiencing avoidable time, trouble and delay in getting a response to her complaint; and
    • as a result of a 2019 internal review the Council has already taken appropriate steps to address its contribution to Mrs Z’s injustice and improve its complaints processes.
  7. I have made recommendations below for SATH to make service improvements to prevent similar problems affecting others’ complaints.

2019 complaint

  1. Mrs Z made a request to the Council for access to Mr X’s social care records and received those in December 2018. On 13 February 2019, she made a further complaint about the conduct of social workers. The Council considered some of the issues in her complaint were issues it had not responded to via SATH in September 2017 and November 2018. Mrs Z had by this time already complained to the Ombudsmen, but the Council decided to commission an independent investigator to conduct an internal review to check whether the Council needed to implement any service improvements. Mrs Z was invited to contribute evidence to the process.
  2. The independent investigator identified that the Council’s earlier responses did not adequately address Mrs X’s concerns and suggested service improvements to prevent this happening in future. As a result, the Council has:
    • held an adult social care complaints workshop for managers;
    • developed a complaints investigation template; and
    • changed the way it deals with joint complaints against it and SATH, to make the process more efficient.
  3. The Council has also offered to:
    • meet Mr and Mrs Z to discuss the outcome of the review and give them personal apologies;
    • should they not wish to meet, send them a written response explaining the outcome of the investigation; and
    • pay them £350 to acknowledge the time and trouble they have spent in pursuing their complaints.
  4. I consider that this is an appropriate remedy for the problems Mrs Z has experienced as a result of the Council’s flaws in complaint handling. I also consider the service improvements are a suitable way to prevent similar problems for others in the future, as long as the Council can provide evidence that it has implemented them.
  5. Mrs Z also complained to the CCG in February 2019, as the commissioner of some of the services she was dissatisfied with. The CCG asked for copies of her complaint correspondence with SATH for quality monitoring purposes but said that it would not re-investigate the complaint because SATH had already investigated it. The CCG’s response was in accordance with the Regulations and therefore not flawed.

Summary of findings

  1. Mr X’s family and the professionals involved with his hospital treatment and discharge faced a complex and difficult situation. While we have identified some faults in what happened, we do not consider they led to a significantly different outcome for Mr X than if there had been no faults. It is possible that there might have been more conversation about support in the community. But based on what happened while Mr X was in hospital, it is more likely than not that he would have continued to resist that support. Some of the problems we have identified caused Mr X’s family avoidable time, trouble and distress during the already difficult and upsetting periods of his hospital admission and move home.

Back to top

Agreed actions

  1. To remedy outstanding injustice to Mrs Z:
    • SATH will apologise to her for the problems identified in our investigation and their effect on her within one month of our final decision;
    • the Council will either meet with Mr and Mrs Z or write to them to explain the outcome of the independent review of 2019; and
    • the Council will pay Mr and Mrs Z £350 as already offered, if it has not already done so.
  2. SATH will provide the Ombudsmen with evidence of its updated complaint consent processes within one month of the date of our final decision.
  3. The Council will provide the Ombudsmen with evidence of the service improvements it has made to its complaints process following the independent review of 2019 within one month of the date of our final decision.
  4. Many of the faults identified in this investigation happened more than three years ago. Staff, policy and practices at the organisations involved as well as national guidance may have changed. As a result, the problems we have identified here may no longer be current. To ensure similar problems do not cause injustice to others, I have made recommendations below for SATH and the CCG to review current processes and resolve any current problems the reviews identify. SATH and the CCG have accepted the recommendations.
    • SATH will review its processes for: writing and issuing discharge summaries; medical record keeping by doctors and nurses; completing CHC checklists; mental capacity assessment recording; palliative care referrals; and dealing with complaints involving more than one organisation. Where it identifies problems or training needs, SATH will devise and implement an action plan to address these. SATH will provide evidence of the review, a copy of any action plan and evidence that it has been implemented to the Ombudsmen, the complainant, CQC, NHS Improvement and (regarding CHC) to the relevant regional office of NHS England within three months of my final decision.
    • The CCG will review its processes for ensuring other organisations such as SATH who complete CHC checklists on its behalf do so in accordance with national guidance, including informing the CCG and patient about the outcome. Where it identifies problems or training needs, the CCG will devise and implement an action plan to address these. The CCG will provide evidence of the review, a copy of any action plan and evidence that it has been implemented to the Ombudsmen, the complainant, and the relevant regional office of NHS England within three months of my final decision.

Back to top

Final decision

  1. Mrs Z complains about her late father’s care and assessments in hospital, discharge from hospital and communication by the organisations involved. We have found fault relating to documentation, communication and complaint handling. We have not upheld the rest of the complaint. The Council, SATH and the CCG agree to our recommendations. We have therefore completed our investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.