The Ombudsman's final decision:
Summary: Mr B complained about what happened when his father, Mr C, was discharged from hospital to a nursing home. We found no fault in the way the Council and Trust arranged Mr C’s discharge from hospital and communicated with his family. We note that the CCG has appropriately offered to review Mr C’s eligibility for NHS continuing healthcare.
- Mr B complains about matters affecting his late father, Mr C. Specifically, he complains that during Mr C’s admission to Warrington Hospital from March to May 2019:
- Warrington and Halton Hospitals NHS Foundation Trust (the Trust) and Halton Borough Council (the Council) failed to make appropriate discharge arrangements for his father;
- His father was too ill to have been discharged from hospital;
- He was told his father had decided to stay in bed and not attend a meeting about discharge arrangements. Mr B says this was not the case as his father was unable to get out of bed at all and was sometimes unresponsive. Mr B says his father could not participate in any decisions about arrangements on discharge from hospital;
- A checklist for NHS continuing healthcare (CHC) completed on the ward on behalf of Warrington CCG was flawed and did not accurately reflect his father’s needs. Mr B says his father was very ill and would have met the criteria to trigger a full CHC assessment had the checklist been properly completed;
- The Council’s communication about funding arrangements was poor, as Mr B was told there would be no charge for the first 12 weeks of care, yet he has since received a bill; and
- There was a lack of information from both the Council and Trust about continuing healthcare.
- Mr B says these failings caused him and his father distress and confusion at a time when they were vulnerable. He says his father missed the opportunity to be fully assessed for CHC because of the flawed checklist. He considers his father may have missed out on the nursing care he should have received after he was discharged. Mr B also says he has been wrongly charged for his father’s nursing home fees.
- As a result of his complaint, Mr B seeks an explanation for why his father was discharged, and acknowledgement that the checklist was not properly completed. He also seeks an acknowledgement that he should not have been charged, and he would like the total payment for the nursing home to be covered.
The Ombudsmen’s role and powers
- 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, and Health Service Commissioners Act 1993, section 18ZA)
- 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)).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have read the information provided by Mr B and discussed the complaint with him. I wrote to the Council, Trust and CCG to tell them what I intended to investigate, and request copies of relevant records. I considered the comments and documents they sent. I also considered the law and guidance relevant to this complaint.
- I took clinical advice from a nurse and a consultant physician.
- Mr B, the Council, Trust and CCG had an opportunity to comment on my draft decision. I have taken their comments into account when making a final decision.
What I found
Applicable legislation and guidance
- Department of Health (DH) guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) (the ‘Ready to go guidance’) is the core guidance around hospital discharge. It contains ten key steps for staff to follow during discharge planning, including:
- start planning for discharge or transfer before or on admission;
- identify whether the patient has simple or complex discharge and transfer planning needs and involve the patient and carer in your decision;
- involve patients and carers so that they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.
- The DH also publishes guidance entitled: Definitions – Medical Stability and ‘Safe to Transfer’ (2003). This provides guidance on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for making this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is considered to be safe for discharge when:
- a clinical decision has been made that the patient is ready for transfer;
- a multidisciplinary team decision has been made that the patient is ready for transfer; and,
- the patient is safe to discharge/transfer.
Social care assessment
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer, or any other person they might want to be involved.
Mental Capacity Act
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
- 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 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.
- 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.
- 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. If the outcome of the Checklist is not to carry out a full assessment, the CCG should write to the person and tell them they have a right to ask the CCG to reconsider it. If they disagree with the outcome once the CCG has reconsidered the decision, they can complain to the CCG. There is no further right of appeal.
- In March 2019, Mr C was diagnosed with pneumonia and was admitted to hospital, where he remained for almost two months for treatment, physiotherapy and occupational therapy. Prior to his admission to hospital, Mr C had been living independently in his own home with one of his sons, Mr D. However, during his time in hospital, Mr C’s mobility deteriorated. He needed help from two people with transfers (moving from sitting to standing, getting in and out of bed) and needed to use a hoist. He also had some episodes of confusion.
- In May 2019, Mr C was assessed by the medical team and found medically fit for discharge. Initially, the plan was to discharge Mr C to an intermediate care placement for rehabilitation, with a view to him returning home afterwards with a package of care. However, although Mr C was noted to be keen to engage with therapy while he was in hospital, he was unable to make progress and was found not to have potential for a rehabilitation placement.
- The hospital social work team reviewed Mr C and the plan for intermediate care was changed. A CHC checklist, the screening tool used to identify when someone might need CHC (please see paragraph 25), was completed by the nursing team and reviewed by the social work team. This did not lead to a full CHC assessment, but NHS-funded nursing care (FNC) was agreed. Mr C wanted to return home, so his family began making some adaptations to his property so it would be suitable for him on his return. In the meantime, Mr C was discharged to a nursing home for respite while the adaptations to his bungalow took place. Sadly, Mr C passed away in the nursing home, in July 2019.
- After Mr C passed away, the Council sent the family an invoice for the nursing home fees. Mr B queried this, as he understood the placement would be free of charge for the first 12 weeks. The Council placed a hold on the invoice while it looked into the complaint. The Council responded to Mr B that an ‘Agreement to Pay’ form had been signed by Mr C’s son, Mr D, and that Mr C’s savings were above the threshold for payment. The Council kept the invoice on hold while the Ombudsmen investigated Mr B’s complaint.
- The Trust also provided comments in response to the complaint, saying that “due to [Mr C] choosing to remain in bed” and being at risk of pressure sores, he was eligible for FNC, but that he did not qualify for CHC. Mr B disagreed with this. He said his father did not choose to stay in bed, but he was physically unable to move out of it, and that he was otherwise very ill and often unresponsive. Mr B said his father should have been eligible for CHC.
- I have looked at each of the issues raised by Mr B, as set out below.
- Mr B complained that the Trust and Council failed to make appropriate discharge arrangements for his father. Discharge from hospital is a process, rather than an isolated event. This means discharge planning should start the day the patient is admitted, by identifying whether the patient has simple or complex discharge needs, co-ordinating the discharge planning process and identifying an estimated discharge date. All of these standards are set out in the Department of Health guidance ‘Ready to Go?’, referred to above. The guidance also recommends review of the clinical management plan with the patient each day, taking any necessary action and updating progress towards the discharge or transfer date.
- The records I have seen so far indicate that discharge planning was in line with this guidance. There was a multidisciplinary (MDT) approach to discharge planning, involving physiotherapists, occupational therapists, social workers, speech and language therapy, medical and nursing staff.
- Mr C’s pre-admission status was clearly identified in both nursing and physiotherapy assessments. The records show that he had complex discharge planning needs, and would need equipment and a social care package to enable him to be discharged home safely. An occupational therapist was involved throughout his admission, and identified the equipment Mr C would need at home. Assessments and interventions by physiotherapists were also comprehensive and in line with the relevant national guidance (Health and Care Professions Council 2013 Standards of Proficiency). The records indicate that despite regular physiotherapy, Mr C’s functioning deteriorated, which meant he had no rehabilitation potential and the plan for intermediate care was amended. Despite this, he continued to have physiotherapy input throughout his in-patient stay.
- As part of discharge planning, Mr C was appropriately referred to the hospital social work team. It is documented that the social work team held regular discussions with family members and were involved in the initial planned procurement of a care package, and then in ensuring the completion of appropriate documentation, to ensure that there were no delays in obtaining NHS funded nursing care for Mr C. The records also indicate the steps taken to arrange discharge were in line with the relevant national guidance (NICE guideline 27, ‘Transition between inpatient hospital settings and community or care home settings for adults with social care needs’).
Fitness for discharge
- Mr B complained his father was not well enough to be discharged from hospital. In response to the complaint, the Trust said that Mr C was medically fit for discharge. It may be helpful to note there is no set definition of medically fit for discharge. Instead, whether a patient is medically fit for discharge is a clinical judgement made by the clinical team treating the patient at the time. A patient may be awaiting therapy such as physiotherapy or a care package, as in Mr C’s case, but it does not mean they are clinically unfit to leave hospital.
- The decision that Mr C was medically fit for discharge was taken at a multi‑disciplinary team (MDT) meeting, and there is a record of communication with his family about the discharge plan. The records also show there was sufficient notice given to the family about the arrangements. The information about discharge was given to them 11 days before Mr C left hospital. The records indicate Mr C was fit to be discharged.
Mr C’s capacity and participation in discharge planning
- Mr B raised concerns that his father was often unresponsive when he visited him in hospital and that he was very unwell. The Trust said that Mr C’s capacity fluctuated and this is supported by the records we have seen so far. Mental capacity is the ability to make a decision. A person lacks capacity if they have an impairment or disturbance that affects the way their mind works, and this means they are unable to make a specific decision at the time it needs to be made. There is a section in the daily nursing notes concerning capacity and the daily entries indicate that Mr C was confused and lacked capacity at times. This appears to be consistent with episodes when he was acutely unwell, and his underlying infection may have contributed to this confusion. Dementia was queried at the time of admission and in a number of nursing entries, but there is nothing to indicate that Mr C had a formal diagnosis.
- Mr B complained that this confusion meant his father was not involved in discharge planning and decisions about his care. However, it is documented that Mr C was able to make decisions about his care and it is evident that he was able to give consent for nursing and physiotherapy interventions. It is also recorded that he was involved in discussions about discharge and was able to make decisions about referral for an intermediate care bed and later, the respite placement, as noted in his discussions with the social worker.
- In response to Mr B’s complaint, the Trust said Mr C had “decided” not to attend the discharge planning meeting. However, Mr B said this was not the case, and that his father was unable to attend because he was physically unable to get out of bed. This should have not prevented him from attending the meeting if he wished to do so: arrangements could have been made for a suitable venue to have been organised so that if Mr C was unable to tolerate sitting, he could have attended the meeting in his bed. However, the social work notes say Mr C declined to attend the meeting and was happy for his family to feed back to him.
- The meeting was described in the notes as a Best Interest meeting, but it is not clear whether this was the case. The records suggest it was a discharge planning meeting which Mr C could have attended if he wished and was able to do so as referred to above. If this was a Best Interest meeting, there should have been evidence of a formal Mental Capacity Assessment being undertaken, with the outcome of this assessment being clearly documented. However, as noted above, no concerns about Mr C’s capacity to make decisions are identified in the nursing records and therefore it appears this was a discharge planning meeting.
- The Council’s records also indicate that Mr C engaged with social workers during his admission. The Council said there was no indication that Mr C lacked capacity. As noted above, there are records of the hospital social work team having several discussions with Mr C and his family about discharge planning. It is apparent from the records that Mr C was confused at times while on the ward. However, the records show that he was able to consent to and participate in therapy and discussions about discharge, and neither the nursing or social work records raised concerns about his capacity to make discharge decisions. This supports the complaint response that Mr C had capacity to make decisions about his discharge from hospital.
NHS Continuing Healthcare (CHC) checklist
- Mr B said a CHC checklist completed on the ward on behalf of the CCG was flawed and did not accurately reflect his father’s needs. Mr B says his father was very ill and would have met the criteria to trigger a full CHC assessment had the checklist been properly completed.
- The checklist was completed on the ward by the nursing team and was reviewed by the social work team. A capacity assessment was included, and it is noted that a referral was made in Mr C’s best interests. The checklist document indicates that Mr C’s sons were present while the checklist was completed.
- When the checklist found Mr C ineligible for CHC, he should have received a letter explaining the decision and details of how to raise any concerns with the CCG, if necessary. During my investigation, I made enquiries of the CCG. However, Mr B had not previously complained to the CCG about the CHC decision. In light of his concerns, the CCG offered to carry out a retrospective review of Mr C’s eligibility for CHC. This is the most appropriate way to address this part of the complaint at this stage. If Mr B remains dissatisfied after receiving the outcome of the review, it is open to him to complain about this directly to the CCG.
Council communication about funding
- Mr B complained the Council’s communication about funding arrangements was poor. He said he was told there would be no charge for the first 12 weeks of care, yet he has since received a bill for Mr C’s nursing home placement. In response to his complaint, the Council said that during Mr C’s hospital admission, the social work team had discussed funding for the respite placement with Mr C and his sons. The Council said they had told the social work team that Mr C had income and savings above the threshold of £23,250 and understood that he would be responsible for the social component of the fees. The Council’s response said the family were aware of the weekly fee for the nursing home and signed the agreement to pay form.
- The Council’s response on this point is supported by the records. The hospital discharge plan says the social work team discussed the respite placement with Mr C and his son. It is also recorded in the discharge plan that Mr C understood and was able to weigh up the decision, and was in agreement with going to the nursing home as a respite placement with a view to returning home once the adaptations to his property were completed. The discharge plan also says the social work team “Discussed with [Mr C’s sons] they advised that [Mr C] has income and savings above £23,250, and understand that [Mr C] will be a full cost client… they are aware of the weekly fee… and have signed the Agreement to Pay form.”
- The Council has sent me a copy of the form ‘Understanding Adult Social Care Charges’ which was signed on Mr C’s behalf by his son, prior to Mr C’s discharge from hospital. The form states “I understand that my package of care is a chargeable service with immediate effect and that I will need to complete a financial assessment form”.
- I have not seen any evidence within the records that Mr B was told his father’s care would be free for the first 12 weeks. However, I recognise there are differing views here about what the family was told, and that it was an emotional and stressful time for Mr C’s family. However, the discharge plan indicates that the respite arrangements were discussed with Mr C and his son, and that they agreed and understood that Mr C would pay for this privately with a weekly contribution from NHS-funded nursing care.
- For the reasons given in the Analysis section, I have completed my investigation and do not uphold Mr B’s complaint against the Trust and Council. If Mr B wishes to complain about the CHC decision, it is open to him to complain to the CCG.
Investigator's decision on behalf of the Ombudsman