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The Rotherham NHS Foundation Trust (19 019 459a)

Category : Health > Hospital acute services

Decision : Upheld

Decision date : 03 Dec 2021

The Ombudsman's final decision:

Summary: Mrs D complained about flaws in her late mother, Mrs M’s, discharge from hospital and the care she received in her own home. Both the Council and the Trust acted with fault, which have led to uncertainty and distress for Mrs D. The Council and Trust have accepted our recommendations, so we have completed our investigation.

The complaint

  1. The complainant, whom I shall call Mrs D, complained about the decision by Rotherham Metropolitan Borough Council (the Council) and Rotherham NHS Foundation Trust (the Trust) to discharge her late mother (Mrs M) from hospital to her own home, rather than into residential care.
  2. Mrs D complained the Council:
    • failed to consider the views of close family members;
    • failed to consult with medical staff engaged in Mrs M’s care about her needs; and
    • used the Mental Capacity Act inappropriately to justify its discharge decision.
  3. Mrs D also complained the Council arranged an inadequate care package which was poorly carried out when Mrs M returned home. The Council arranged for a care provider called Lotus Care to provide care to Mrs M.
  4. Mrs D said these issues:
    • meant her mother had a poor quality of life on her return home; and
    • contributed to Mrs M’s readmission to hospital within three days of discharge and later death.
  5. Mrs D’s desired outcomes from an investigation were:
    • an apology;
    • service improvements; and
    • financial redress. Mrs D has clarified that she would like any financial redress to be used as a donation to charity in Mrs M’s memory.

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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 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).
  3. 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.
  4. 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.
  5. 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)
  6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  7. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
  8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

  1. I have considered written information provided by Mrs D, the Council and the Trust. I have also considered relevant law and guidance, details of which I have set out below.
  2. Mrs D, the Council, Lotus Care (the home care provider acting on the Council’s behalf) and the Trust have had an opportunity to comment on a draft decision. I have considered any comments they made before making a final decision.

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What I found

What happened

  1. Between 2008 and June 2019, Mrs M lived on her own. Mrs D says that:
    • Mrs M wanted to continue living in her own home;
    • at first, she could socialise, do her shopping and go on holiday with the help of family and friends;
    • however, Mrs M’s well-being and everyday activities eventually became affected by osteoporosis and dementia, so Mrs D and her sister (Mrs K) arranged private home care for her;
    • from early 2019, Mrs D and Mrs K had concerns about Mrs M’s safety at home and the effect of her illnesses on her quality of life; and
    • Mrs D and Mrs K were trying to persuade Mrs M to move into residential care during early 2019.
  2. Mrs M was admitted to the Trust’s hospital on 19 June 2019. She was confused and had reduced mobility.
  3. The hospital considered Mrs M was medically stable for discharge on 25 June and referred her to the Council for a social care needs assessment. The hospital’s referral form stated Mrs M had urinary incontinence. The Council started assessing her social care needs on the same day. Mrs D was present at the assessment. Mrs D wanted Mrs M to move into residential care near family in another part of England. Mrs M wanted to return to her own home in the Council’s area.
  4. On 26 June, the Council assessed Mrs M’s mental capacity to decide about her care and accommodation on discharge from hospital. The Council decided Mrs M did not have the capacity to make these decisions. The mental capacity assessment noted that Mrs M did not have insight into the risks of moving around and getting out of bed without support.
  5. The Council also consulted Mrs M’s private home care provider, who told the Council:
    • Mrs M’s mobility had declined;
    • Mrs M needed prompting with eating;
    • Mrs M was not managing well at home; and
    • in the care provider’s view, there was no risk of Mrs M trying to stand and leave the property on her own.
  6. On 27 June, the Council consulted Mrs M again, who said she did not want to go into residential care and wanted to go home. The Council held a best interests meeting on the same day. Two social workers, a hospital occupational therapist and Mrs D attended the meeting. The Council’s position was that it was in Mrs M’s best interest to return home with more support because she wanted to go home and did not want to go into residential care. The Council noted Mrs D’s strong disagreement with this view. Mrs D was concerned that Mrs M would not have any care workers present at night and for large parts of the day. The Council told Mrs D she had a right to make a complaint. Later that day, the social worker told Mrs K that:
    • Mrs M was not trying to get up without help while in hospital; and so
    • “we would not see any risk with [Mrs M] attempting to get up”.
  7. On 27 June the Council asked the hospital to document the following:
    • how long it was taking staff to support Mrs M with personal care and meals;
    • how much support they were providing; and
    • how many times Mrs M asked to use the toilet in the night.
  8. There are no records showing the hospital gave this information to the social worker at the time.
  9. The Council arranged for an Independent Mental Capacity Advocate (IMCA) to visit Mrs M on 3 July. The IMCA’s report, dated 20 August 2019, included the following.
    • The Council had already made a best interest decision when it asked for IMCA involvement.
    • Mrs M was clear and consistent in her wishes and could communicate them directly. Mrs M told the IMCA that she wanted people to come and help her but not to be there all the time. She did not want to live in a care home.
    • The Council had assessed the risk of falls as low because Mrs M was not trying to get up or go out of the house without the help of carers.
    • The best interest decision [for Mrs M to return home] should stand. However, in future, the Council should make extra efforts to maximise Mrs M’s involvement in making decisions, especially reviewing her placement at home.
  10. On 4 July, hospital occupational therapy and physiotherapy staff had assessed Mrs M again and recommended “downstairs living”. The therapists also asked nurses to document Mrs M’s behaviour at night and toileting. A physiotherapy assessment of 5 July said Mrs M could stand and walk with help.
  11. The Council completed an assessment of Mrs M’s care needs on 8 July. The assessment noted the following.
    • It was important to Mrs M to return to her own home.
    • Hospital therapy staff recommended Mrs M should live downstairs, have two care workers, and transfer using a “step round transfer” with the help of two people.
    • Mrs M needed full support with making meals and snacks and much prompting and encouragement to eat and drink.
    • Mrs M needed support from two people with getting washed and dressed.
    • Mrs M needed help to get out of bed. In hospital, she could be incontinent of urine so care workers needed to ensure she had pads on before going to bed.
    • Because Mrs M needed “support with her mobility from two others, [Mrs M] will be wearing incontinence pads on a regular basis on discharge… Without any support in place…could increase her risk of attempting to [use the toilet] independently and falling”.
    • At home, Mrs M had a bed sensor, door sensors, a fall alarm and pendant.
    • Mrs M would have wheeled commodes when she returned home. Care workers were to prompt and ask Mrs M if she needed to use the commode.
  12. On 8 July, the Council spoke with Mrs M’s private care provider and Mrs K. The private care provider confirmed it did not have capacity to provide two care workers to support Mrs M. The Council suggested it could arrange care through a different agency and make a referral for a chair sensor. Mrs K agreed with this.
  13. On 9 July, Lotus Care told the Council it could provide Mrs M’s care package, starting with a teatime call on 11 July. The Council accepted this offer. Another therapy assessment on 9 July noted concerns from Mrs D about her mother being alone for long periods when she returns home.
  14. On 10 July, a hospital physiotherapist told Mrs M’s social worker of her concerns about the plans to discharge Mrs M home. The physiotherapist had concerns that Mrs M would not be safe at home because of “recent behaviours”. The physiotherapist asked the Council to organise another professionals’ meeting before Mrs M left hospital. The Council noted the hospital records showed Mrs M trying to get out of bed at night, something Mrs D considers was because Mrs M wanted to use the toilet. The Council decided not to organise another professionals’ meeting because it considered that alarmed sensors and a review within two weeks of Mrs M returning home would be enough. The Council told Mrs D that Mrs M would be discharged home before 2pm and the new care agency would start with a teatime call.
  15. The physiotherapist and occupational therapist assessed Mrs M again on 10 July. They noted that:
    • Mrs M still needed help from two people to move around, using a ‘step-round transfer’; and
    • it was not in her best interest to have a bed downstairs because of past experiences, associated distress, and risk of her trying to use the stairs at night.
  16. The Council arranged for Lotus Home Care Ltd to make care calls at Mrs M’s home as follows. The times were estimates, with a 15-minute leeway either side of each call.
    • Morning – 8am, one hour.
    • Lunch – 1pm, 45 minutes.
    • Tea – 4:30pm, 45 minutes.
    • Evening – 8:30pm, 45 minutes.
  17. Mrs M went home from hospital on 11 July. Care workers arrived as agreed with the Council at 4:40pm. Mrs D says that:
    • when the care workers arrived on 11 July, they made Mrs M use the commode in full view of the downstairs lounge window;
    • this was despite Mrs M saying she did not need to use the commode; and
    • the way the care workers did this meant an old wound on Mrs M’s leg started bleeding.
  18. On 12 July, the Council contacted the care provider and confirmed:
    • Mrs M’s bed was not downstairs and she had no incontinence products;
    • care workers were using the wrong technique to transfer Mrs M; and
    • care workers had arrived about 90 minutes late that morning.
  19. The Council also contacted a community discharge nurse on 12 July and arranged a referral for incontinence products.
  20. Mrs D, who had been staying with her mother during the first few days of Mrs M’s return home, went back to her own home in another county on 13 July.
  21. On 14 July, care workers attended Mrs M’s home at 8:23am and found her on the bedroom floor. She was confused and could not move on her own. The care workers called an ambulance and told Mrs D. Ambulance notes say there were no incontinence pads in the house. Mrs M was readmitted to hospital, where she died two weeks later from hospital-acquired pneumonia.
  22. The Council sent Mrs M’s care needs assessment and support plan to her on
    17 July, three days after she went back into hospital.

Discharge from hospital

Relevant law and guidance

  1. Department of Health guidance: Definitions – Medical Stability and ‘Safe to Transfer’ (2003) (the ‘Safe to transfer guidance’) advises on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is 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.
  2. A patient is defined as clinically or medically stable if tests (such as blood tests and observations) are within the normal range for the patient. A patient is ‘fit for discharge’ when all relevant physiological, social, functional, and psychological factors have been considered. This may need a multidisciplinary assessment.
  3. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
  4. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. Councils and hospitals must assess someone’s ability to make a decision when that person’s capacity is in doubt. How they assess capacity may vary depending on the complexity of the decision.
  5. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following.
    • Does the person have a general understanding of what decision they need to make and why they need to make it?
    • Does the person have a general understanding of the likely effects of making, or not making, this decision?
    • Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
    • Can the person communicate their decision?
  6. More complex decisions are likely to need more formal assessments.
  7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made for a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. This includes taking into account the person’s wishes and feelings and the views of anyone caring for the person or interested in their welfare. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
  8. Independent mental capacity advocate (IMCA) services support people who cannot make or understand decisions by stating their views and wishes. A council should commission an IMCA if a person lacks capacity to make a decision about their care and has nobody else willing and able to represent them. If the person has friends or family who are willing and able to represent them and are suitable for this task, then there is no need to instruct an IMCA.
  9. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
  10. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes Article 3, the right to freedom from inhuman or degrading treatment. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
  11. The Ombudsmen cannot decide whether an organisation has breached the Human Rights Act – only the courts can do this. But the Ombudsmen can make decisions about whether a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Was there fault in the discharge process?

  1. The Council consulted Mrs M’s daughters and took their views into account when planning Mrs M’s discharge from hospital, although it disagreed with those views. The Council also took Mrs M’s views into account and followed the relevant law and guidance when deciding she did not have the capacity to decide on her discharge destination. In these respects, the Council’s actions followed the Mental Capacity Act and associated guidance.
  2. However, when the Council decided it would be in Mrs M’s best interests to go home from hospital on 27 June, its undated decision record wrongly said it had consulted an IMCA when making that decision. This was fault as the record was inaccurate. The Council had not commissioned the IMCA until July, and the IMCA did not issue their report until August, after Mrs M had died.
  3. The Council appointed an IMCA even though Mrs M had close family members who were willing and able to represent her. This was contrary to the relevant guidance. The Council told us it appointed the IMCA because it wanted to ensure it took Mrs M’s views into account given that her family’s views were contrary to her wishes. The Council now accepts it should have referred the decision about Mrs M’s hospital discharge to the Court of Protection. The Council’s appointment of the IMCA and its failure to seek a decision from the Court of Protection were faults.
  4. Mrs D raised concerns with the Council about Mrs M falling when trying to get up to use the toilet when she was alone. The Council noted these concerns and that it did not think Mrs M would try to get up without help, based on advice from her former care workers. The Council considered alarmed sensors, incontinence products and a two-week review would mitigate the risks. Although the Council was aware that Mrs M was only occasionally incontinent and tried to get out of bed at night in hospital, it did not adequately explain how it would reduce the associated risk of falls and injury to an acceptable level when she returned home. While an alarmed sensor could notify out of hours staff that Mrs M might have fallen, it would not reduce the risk of falling. As part of its mental capacity assessment, the Council did not assess Mrs M’s ability to understand that she should not try to use the toilet on her own and that she was expected to wait for carers to arrive to help her use the toilet and/or get clean. The Council acted with fault in not taking into account all relevant matters when considering the falls risk to Mrs M when she returned home. This included Mrs M’s capacity to understand that she:
    • should not try to use the toilet on her own; and
    • was expected to wait or intentionally use incontinence products if nobody was available to help her.
  5. I consider that Mrs M’s Article 3 right of freedom from inhuman or degrading treatment was engaged because of the expectation that she should use incontinence products if she could not wait until care workers arrived to help her use the toilet, despite evidence that she could use the toilet with help. There is no evidence the Council considered the impact of this expectation on Mrs M’s Article 3 right or satisfied itself that incontinence products would be available for her to use when she got home. This was fault by the Council.
  6. The Council also sought information from the Trust staff engaged in Mrs M’s care. However, the Trust did not provide all the information the Council asked for about the care Mrs M needed in hospital, including toileting. This was fault by the Trust.
  7. The Council then went on to make a decision about the level of care that would meet Mrs M’s needs at home without all the information it had asked the Trust for, despite identifying that this information was relevant to its assessment of Mrs M’s care needs. This was fault by the Council.
  8. When the Trust became aware of the Council’s plans for Mrs M’s care at home, it told the Council it had concerns about her safety. The Trust then asked the Council to call another professionals’ meeting to discuss the discharge plans. The Council refused because it considered its existing plans were robust enough. The Council acted with fault in pressing ahead with the plan to discharge Mrs M home without thoroughly exploring the Trust’s concerns through a professionals’ meeting.
  9. I have seen no evidence the Council and Trust had a system in place for escalating and resolving professional differences such as the ones highlighted here. This was fault by both organisations.
  10. The Trust has told us that it should have referred Mrs M to its continence team for an assessment before she left hospital. It also told us that its usual practice was to provide people with enough continence products for 48 hours after discharge to allow enough time for their GP to prescribe more products for regular use. It did not do this. The Trust acted with fault in failing to refer Mrs M to its continence team and failing to provide her with continence products when it discharged her from hospital.

Did any faults relating to hospital discharge cause an injustice?

  1. We cannot say, even on balance of probability, that Mrs M would have stayed in hospital or moved to a care home if the Council and Trust had acted without fault. This is because there are too many unknowns, including what view the Court of Protection might have taken about a suitable discharge destination.
  2. Mrs M died shortly after returning to hospital in July 2019. We cannot therefore remedy any injustice she may have suffered because of flaws in the hospital discharge process.
  3. However, Mrs D is left with a justifiable and distressing uncertainty about whether her mother might have had better care, but for the flaws in the discharge process. I have recommended a remedy for Mrs D at the end of this statement.

Care at home

Relevant law and guidance

  1. Section 9 of the Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their well-being and the results they want to achieve. It must also:
    • involve the individual and where suitable their carer or any other person they might want involved;
    • give the individual a copy of the assessment.
  2. Where a council assesses a person’s social care needs and decides they have ‘eligible needs’, the council must meet these needs. It must also prepare a care and support plan and give a copy to the person.
  3. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The following Regulations are relevant in this case.
    • Regulation 9 (person-centred care) says care must be appropriate, meet the person’s needs and reflect their preferences.
    • Regulation 10 says people must be treated with dignity and respect. This includes ensuring their privacy.
    • Regulation 12 says care and treatment must be provided in a safe way. This includes doing all that is reasonably practical to mitigate risks to people.
    • Regulation 13 says people must be protected from abuse and improper treatment. This includes ensuring care is not provided in a way that is degrading.

Was there fault in the way Mrs M’s care at home was organised and delivered?

  1. The Council says it completed Mrs M’s care needs assessment and support plan on 8 July, three days before she left hospital. However, it did not send her a copy of her care needs assessment and support plan until 17 July, six days after she left hospital and three days after she was readmitted following a fall. The Council has not provided a valid explanation of why it could not issue these documents in time for Mrs M’s discharge from hospital. Failure to do this was fault.
  2. Mrs M arrived home from hospital on 11 July 2019, before the care workers were due to get there. Mrs D was with her. The care workers arrived at 4:40pm and stayed for 20 minutes. Their care notes say they helped her to sit on the commode and she injured her leg while this was happening. The Council later found out that care workers were not using the “step round transfer” method recommended by hospital staff to help Mrs M mobilise. Mrs D says the carers told Mrs M to go on the commode even though she had said she did not need to, and that they did this while the curtains in the downstairs room were open. I consider it more likely than not that Mrs D’s recollection of events is correct. This is because Lotus Care’s on-call log notes support Mrs D’s recollection. Also, Mrs D complained about these issues not long after the event and the Council and care provider did not dispute her recollection at the time.
  3. The care provider, acting on behalf of the Council, should have used the correct method to help Mrs M move around. Failure to do so was contrary to Regulations 9 and 12, and therefore fault. Asking Mrs M to use the commode with the curtains open and when she said she did not need to was contrary to Regulations 10 and 13, and therefore fault.
  4. On 12 July, the care workers arrived over an hour late for their morning visit. This was contrary to Regulation 9 and fault. Most of the care visits up to the evening of 13 July were shorter than the allotted time. However, most of the entries on the visit logs state that care workers carried out their tasks and then left as Mrs M needed nothing further. It was not fault to leave earlier, if all care tasks were completed.

Did any fault relating to organising and providing home care cause an injustice?

  1. I have already described above the flaws in the way the Council assessed Mrs M’s mental capacity and care needs while she was in hospital, and the way it shared written records with her. It would have been difficult for Mrs D to check that her mother was receiving the care she needed at home without written copies of Mrs M’s assessment and care plan. However, we cannot say, even on balance of probability, that the flaws in assessment meant Mrs M’s care and support plan was inadequate or that she would not have fallen had a different care plan been in place. This is because:
    • the risk of falls cannot be completely removed, even with an adequate care plan; and
    • there are too many unknown variables, including what the Court of Protection might have decided about the care Mrs M needed.
  2. However, Mrs D is left with the distressing uncertainty that her mother might have had better care and avoided readmission to hospital, had there been no flaws in care planning and provision.
  3. Arriving late, using the wrong method for transfers and asking Mrs M to use a commode without privacy, more likely than not led to distress and a loss of dignity for Mrs M. Knowing this happened has also caused avoidable distress to Mrs D.
  4. As Mrs M has since died, we cannot recommend a remedy for her personal injustice. I have recommended a remedy for Mrs D and service improvements at the end of this statement.

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Agreed actions

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions of the care provider, we have made recommendations to the Council.
  2. Within one month of the date of my final decision:
    • the Council and Trust will send Mrs D written apologies acknowledging the faults we have identified and their impact on Mrs D and her mother;
    • the Council will pay Mrs D a symbolic sum of £300 in recognition of the distress and uncertainty she has suffered because of faults by the Council and care provider acting on its behalf. If the Council and Mrs D both agree, the Council can pay this sum direct to a charity of Mrs D’s choice.
  3. Within three months of the date of my final decision, the Council and Trust will develop a procedure for escalating and resolving professional disputes about hospital discharge.
  4. Within six months of the date of my final decision, the Council will review and, if appropriate, update its policies, procedures and staff training on:
    • considering the mental capacity of service users to understand their care plan and any actions expected of them as part of it;
    • when to commission IMCA services;
    • when to refer disputes to the Court of Protection; and
    • sharing care needs assessments and care and support plans with service users and their families.

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Final decision

  1. There were faults in relation to Mrs M’s discharge from hospital and home care. These have led to avoidable distress for Mrs D. The Council and Trust have accepted my recommendations. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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