United Lincolnshire Hospitals NHS Trust (20 000 835a)

Category : Health > Hospital acute services

Decision : Upheld

Decision date : 25 Jan 2021

The Ombudsman's final decision:

Summary: We have partially upheld Mr S’s complaint about his father’s discharge from hospital to a residential care home. The Council and Trust have already apologised to Mr S and we consider this a suitable remedy for distress caused to Mr S. The Council says it has already improved its way of working following Mr S’s complaint. We have asked for evidence of these improvements and recommended further service improvements. The Council and Trust accept our recommendations, so we have completed our investigation.

The complaint

  1. The complainant, whom I shall call Mr S, complained about his father Mr F’s discharge from Pilgrim Hospital, Boston (run by the Trust) to The Gardens Residential Home, Boston (‘the Home’, run by HC-One Ltd and commissioned by the Council to care for Mr F). Mr S said the discharge in March 2019 was flawed because:
    • Mr F was discharged from hospital in freezing weather wearing only a gown, with bare feet, and carrying somebody else’s stick;
    • the Home was unaware of Mr F’s recent medical history and his hearing and sight impairments; and
    • the Home could not meet Mr F’s needs and wanted to send him straight back to hospital, although it agreed he could stay for the night until he could move to a more suitable place.
  2. Mr S also complained the Home and Council failed to update him about a complaint the Home said it would raise with the hospital about the discharge.
  3. Mr S said that what happened distressed and confused his father. As an outcome, Mr S wanted the organisations involved to put in place service improvements to prevent similar problems happening again.

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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. 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)
  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. 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 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)
  7. 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 information Mr S has provided in writing and by telephone. I have also considered written information provided by the Council and Trust.
  2. Mr S, the Trust, the care provider and the Council have had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

Background summary

  1. Before February 2019, Mr F lived in his own home and Mr S was his main carer. In February 2019, Mr F went into a nursing home (Home X) for respite care because Mr S was in hospital. Mr F was admitted to hospital on 10 February 2019 because of a suspected stroke. Home X did not have a place for Mr F when he was ready to leave hospital. The Council commissioned a place at the Home and Mr F was discharged there on 7 March 2019. On the same day, the Home decided it could not meet Mr F’s needs. He moved back to Home X the next day.

Trust: discharge from hospital to the Home

  1. Department of Health 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 says that it is crucially important to identify anything that would make a person’s discharge problematic. This includes discussing and agreeing arrangements for clothes.
  2. The National Institute for Health and Care Excellence (NICE) issued a guideline known as Transition between inpatient hospital settings and community or care home settings for adults with social care needs (NG27). This makes the following points.
    • Everyone receiving care should be treated with dignity and respect throughout the move from hospital to care home.
    • People at risk of less favourable treatment or with less access to services, for example people with communication difficulties, should be identified and supported.
  3. The Human Rights Act 1998 brought the rights in the European Convention on Human Rights into UK law. Public bodies, including councils and NHS Trusts, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. 'Act' includes a failure to act. (Human Rights Act 1998, section 6)
  4. It is not the Ombudsmen’s role to decide whether a person’s human rights have been breached or to say whether an organisation has acted lawfully. Those decisions are for the courts. Our role is to decide whether there has been fault causing injustice. Where relevant, we consider whether an organisation has acted in line with its legal duties in section 6 of the Human Rights Act. We may find fault where the organisation cannot evidence it has had regard to a person’s human rights or if it cannot justify an interference with a qualified right.
  5. We consider that Article 3 of the Human Rights Act was engaged in this case because this part of the complaint involves treatment that can be perceived as degrading.
  6. Hospital transport took Mr F to the Home on 7 March 2019. The Council’s records say the Home called Mr F’s hospital social worker at 1pm on the same day to express concerns about the discharge. The social worker’s notes say the Home told her that Mr F “was only in hospital gowns and was going blue with the cold and he was shivering”.
  7. The Trust’s pre-discharge checklist has the following sections.
    • “Patient is dressed appropriately for discharge and has their own clothes on?”
    • “Equipment in place? List below.”
  8. Both sections are blank on Mr F’s checklist.
  9. In response to our enquiries, the Trust told us the following.
    • Mr F came into hospital from a respite stay in a nursing home, while his son and main carer was also in hospital.
    • The Trust has no record of what Mr F had with him on admission, other than a confirmation that he had no valuables.
    • Mr F would have been dressed in hospital pyjamas if he did not have his own clothes.
    • Mr F should have had enough blankets on discharge to keep him warm and preserve his dignity.
    • Mr F did not need any equipment on discharge.
  10. The Trust accepts that it should have checked with Home X if it could provide clothes for Mr F’s discharge. It says that it is now reviewing its discharge policy.
  11. The Trust acted with fault in the way it discharged Mr F from hospital. This is for the following reasons.
    • The Trust did not arrange for Mr F to have his own clothes and shoes on discharge, despite having contact details for Home X and Mr S. This was contrary to the ‘Ready to go’ guidance. Mr S was himself in hospital during much of Mr F’s stay there. However, he may have been able to ask somebody else to bring Mr F’s shoes and clothes from home, had the Trust consulted him. Mr S also told us that he was back at home the day before Mr F’s discharge to the Home.
    • The Trust did not complete a property list for Mr F’s discharge.
    • As well as not having his own clothes, Mr F also did not have enough blankets for the move from the hospital to the Home. This was contrary to NICE guidance on treating everyone with respect and dignity.
    • The Trust was aware of Mr F’s communication difficulties and disabilities. However, there is no evidence that it provided suitable support in recognition of this for his move to the Home. It also discharged him with a walking stick that was not his, and he did not need. This was contrary to NICE guidance.
    • There is no evidence the Trust had regard to Mr F’s right not to be subject to degrading treatment when it discharged him wearing short-sleeved pyjamas and no shoes on a cold day in March.
  12. The Trust’s fault caused Mr F distress, discomfort and loss of dignity. We cannot recommend a remedy for Mr F’s injustice as, sadly, he died in 2020. Knowing about what happened has also caused Mr S distress. The Trust has already apologised to Mr S and reminded staff about completing property lists on both admission and discharge. We are satisfied that this remedies Mr S’s injustice.
  13. We have recommended service improvements for the Trust, to prevent similar problems affecting others. These set out at the end of this statement. The Trust has accepted our recommendation.

Council: Home’s awareness of recent medical history, hearing and sight impairments; Home’s inability to meet Mr F’s needs

  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, we would consider the Council responsible for any actions by the Home.

What happened

  1. On 4 March 2019, the hospital told Mr F’s social worker that:
    • it was happy for the Council to start planning for Mr F’s discharge from hospital; and
    • Mr F was “for palliative care” (care for an advanced illness for which there is no cure, with the aim of managing pain and other symptoms and ensuring the best possible quality of life).
  2. On 5 March, the Council completed a needs assessment and a care plan for
    Mr F. These stated the following relevant information.
    • Mr F had limited communication and could only answer questions with yes or no. However, he could understand what was being asked and had capacity to consent to the assessment.
    • Mr F was “completely deaf” and had limited sight.
    • Mr F could move without support, but because of a recent stroke he needed supervision to prevent falls, as well as support and supervision with personal care and dressing.
    • Mr F needed catheter care, prompting with medication and regular checking through the night.
    • When admitted to hospital, Mr F needed enhanced care because of confusion, but he was recovering slowly and no longer needed enhanced care. For a safe discharge from hospital, Mr F needed a high dependency level of care in a residential home.
  3. The Council’s social worker also made the following notes on 5 March 2019.
    • Mr F was asleep during the visit. He did not communicate well because of a recent stroke, so all the information came from his notes and the nursing staff.
    • Mr F’s mental capacity to make decisions about day-to-day life and care fluctuated because of a recent stroke.
    • The Home had assessed Mr F and had a place for him from 7 March 2019.
  4. Soon after Mr X arrived at the Home on 7 March 2019, the Home contacted the Council. The Home considered the discharge was inappropriate because of
    Mr F’s complex health problems and need for palliative care. Mr F remained safe and well at the Home overnight. The Council arranged for Mr F to move to Home X the next day.
  5. The Council and Home have been unable to provide a copy of the pre-admission assessment the Home completed on 5 March 2019. The Home says the manager was on leave that day and a senior care assistant completed the assessment instead. There is no evidence that a manager had input into the decision that the Home could meet Mr F’s needs.
  6. The Home’s response to Mr S’s complaint says the Home’s staff only realised when Mr F arrived that his “mobility was extremely poor and that his vision and hearing was worse than had been identified on the pre admission assessment”. It also says the pre-admission assessment had not identified the full range of Mr F’s medical conditions and the need for palliative care.
  7. Mr F’s hospital medical records were available to the Home when it carried out the pre-admission assessment. The records contain the following information relevant to this part of the complaint:
    • the medication Mr F received in hospital, including regular medication he was likely to need to continue taking at the Home;
    • Mr F had liver and kidney disease;
    • Mr F needed help from one or two people to complete daily living activities;
    • Mr F was “profoundly deaf and blind” and not using any communication aids;
    • medical staff had assessed Mr F as not having capacity to make decisions about his treatment and applied for authorisation to deprive him of liberty;
    • carers needed to empty Mr F’s catheter every hour during the day and when he was awake at night;
    • Mr F could move around but used handrails to guide him;
    • there was a high risk of Mr F falling because of his vision and hearing impairments, kidney damage and the frequency he needed to use the toilet;
    • Mr F needed help with eating and drinking as well as food in bite-sized pieces and thickened drinks;
    • Mr F was “on the Gold Standard Framework” (GSF, a framework used by many hospitals and care homes to enable earlier recognition of patients who might be in the last stage of their life);
    • the consultant considered Mr F’s prognosis (an opinion about how an illness is likely to develop) was poor; and
    • a palliative care nurse had assessed Mr F and supported the hospital’s decision to stop his treatment and provide best supportive care. However, the nurse did not consider that Mr F needed NHS-funded residential care following discharge from hospital.

My analysis

  1. 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. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. The Council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
  2. The Equality Act 2010 protects people with ‘protected characteristics’ from discrimination. Disability is a protected characteristic. The Equality Act 2010 applies to public authorities carrying out public functions. It requires service providers to:
    • anticipate the needs of potential disabled service users; and
    • make reasonable adjustments to ensure disabled people can access services in a way that is as close as possible to the standard offered to the public at large.
  3. We consider the Equality Act 2010 was engaged in this case because this part of the complaint is about a lack of awareness of Mr F’s disabilities and a related inability to meet his needs.
  4. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) set out the fundamental standards those registered to provide care services must achieve.
    • Regulation 9 says care providers must assess residents’ needs and design care with a view to ensuring their needs are met. It also says that care providers must make reasonable adjustments to enable people to receive their care.
    • Regulation 10 says care providers must have due regard to any relevant protected characteristics (as defined in section 149(7) of the Equality Act 2010) of the service user.
    • Regulation 17 says service providers must have systems to enable them to maintain securely accurate and complete records for service users.
  5. The Government issued Care and support statutory guidance, which provides guidance on the Care Act 2014. This says that care planning “should be person-centred and person-led”.
  6. The Home had all the information it needed to enable it to carry out an accurate pre-admission assessment. There was fault in the following.
    • There is no evidence the Council considered Mr F’s capacity to decide about his care or discharge destination. This is despite the social worker noting his capacity fluctuated, Mr S having Court of Protection authority to make decisions on Mr F’s behalf, and the hospital deciding he did not have capacity to decide about medical treatment.
    • The Home and Council have no record of the pre-admission assessment. There is also no record of what information the Council shared with the Home about Mr F’s needs assessment and care plan. This is contrary to Regulation 17 and to statutory guidance that care planning should be person-centred and person-led.
    • The pre-admission assessment did not identify relevant information about
      Mr F’s medical conditions and disabilities despite the information being readily available. There is no evidence the Home considered making reasonable adjustments under the Equality Act 2010 to enable Mr F to access care there or had regard to Mr F’s disability. This was contrary to Regulations 9 and 10.
    • The pre-admission assessment incorrectly concluded the Home could meet
      Mr F’s needs. This was contrary to Regulation 9.
  7. Because of the faults, Mr F suffered the inconvenience and distress of moving twice in 24 hours, while he was still in poor health and very vulnerable.
    Mr S also suffered distress knowing the difficulties his father faced. The Council has already apologised to Mr S for its poor communication with him, and the Home has apologised for the distress to Mr F and Mr S. We are satisfied this remedies Mr S’s personal injustice.
  8. The Home has made the following service improvements since Mr S’s complaint.
    • Usually, only the manager or deputy manager may complete pre-admission assessments.
    • Where both the manager and deputy manager are on leave, a senior care assistant may complete the pre-admission assessment but must discuss a potential admission with senior staff.
    • If a professional such as a social worker has enquired about a place, then the home is to agree on communication with relatives before agreeing admission.
    • Staff must document all discussions with other professionals.
  9. Due to COVID-19, the Home now uses hospital-based Trusted Assessors rather than sending out its own staff to carry out pre-admission assessments.
  10. The Council now employs a Community Care Nurse Specialist in each of its teams across Lincolnshire hospital sites. The nurses support social workers on ward visits and with discharges, and can challenge decisions about discharges they consider inappropriate.
  11. I have recommended further service improvements relating to mental capacity and reasonable adjustments. These are set out at the end of this statement. The Council has accepted our recommendations.

Council: updating Mr S about complaint by Home to hospital

  1. The Council’s records show that on 8 March 2019, the Home told Mr F’s social worker that it was going to complain to the hospital about the discharge.
  2. The records I have seen say that:
    • the Home contacted the hospital on 8 March 2019 to voice concerns over how Mr F was dressed when discharged from hospital and conflicting information in his discharge documents;
    • the hospital told the Home it would look into this; and
    • the hospital later telephoned the Home to explain the information in the discharge documentation.
  3. The Home did not raise a complaint on Mr F’s or Mr S’s behalf, but rather expressed a professional concern about the way the hospital had discharged
    Mr F. I have seen no evidence the Home or Council gave Mr S an undertaking that they would update him about the hospital’s response to the Home’s concern or complain on his behalf. Therefore, I have found no fault in relation to this part of the complaint.

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Agreed actions

Trust

  1. The Trust is currently following the national discharge policy, because of the COVID-19 pandemic. Within three months of the date it reverts to following its own discharge policy, the Trust will:
    • complete the review of its discharge own policy, taking into account problems highlighted by this complaint and the relevant guidance on hospital discharge; and
    • send the Ombudsmen, Mr S, Care Quality Commission and NHS Improvement copies of the resulting action plan.
  2. Within six months of the date it reverts to following its own discharge policy, the Trust will provide evidence to the Ombudsmen that it has completed the action plan.

Council

  1. Within one month of the date of our final decision, the Council will ensure relevant staff and the Home are reminded of their duties under the Mental Capacity Act 2005 and their duties to consider reasonable adjustments. The Council will provide evidence to the Ombudsmen that it has done this.

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Final decision

  1. We have upheld parts of Mr S’s complaint. The Council and Trust have accepted our recommendations. We have therefore completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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