The Ombudsman's final decision:
Summary: The NHS Trust failed to involve the Council as soon as possible so that it could start care planning. This unnecessarily delayed Ms E’s discharge from hospital by three weeks. Ms E was schizophrenic; the prolonged hospital stay had an adverse impact on her mental health. Her mother, Ms D, was offering a lot of support. It was distressing for Ms D witnessing Ms E’s distress. Ms E has died so we cannot remedy her injustice. For the impact on Ms D over the avoidable three-week period, the NHS Trust will apologise and pay Ms D £600. The NHS Trust will also review its discharge policy.
- The complainant, who I will call Ms D says the Council and NHS Trust delayed her daughter (Ms E’s) discharge from hospital. Ms E was a paranoid schizophrenic, Ms D says the prolonged stay in hospital had an adverse effect on Ms E’s mental health. Ms E was distressed and would not eat, get dressed, take medication or sleep without the support of her mother. Ms D had to spend extended periods at the hospital to settle her daughter. Often Ms D would return home late at night only to receive a telephone call to return to the hospital as the ward staff could not settle her daughter. Ms D would sleep in a chair beside her daughter’s bed. Ms D’s sleep suffered, and she had to take medication to help her sleep. Ms D feels there was a lack of empathy and support. Ms D says the communication with her was poor, and she got no response to her offer to contribute financially to the care package to enable her daughter to come home.
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,as amended, 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), as amended).
- 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 considered:
- Information from Ms D, including during telephone conversations.
- Information from the bodies contained of, including case notes and clinical case notes.
- Relevant law and guidance as described in the body of the statement.
What I found
Relevant legislation and guidance
- The Department of Health produces guidance entitled Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) (the ‘Ready to go’ guidance). This 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 they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.
- Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 make provisions on the discharge of hospital patients with care and support needs. The NHS may seek reimbursement from local authorities for a delayed transfer of care in the circumstances set out in Schedule 3 and its regulations.
- The NHS must issue a notice to the local authority where it considers an NHS hospital patient receiving acute care may need care and support as part of a transfer from an acute setting regardless of whether it intends to claim repayment. The NHS should try to give the local authority as much notice as possible of a patient’s impending discharge. However, the NHS cannot issue an assessment notice more than 7 days before it expects to admit the patient to hospital.
- On receiving an assessment notice, the local authority must assess the person’s care and support needs and (where applicable) those of a carer to determine whether it considers the patient and carer have needs. The local authority must then decide whether any of these identified needs meet the eligibility criteria. If so, it should confirm how it proposes to meet any of those needs. The local authority must inform the NHS of the outcome of its assessment and decisions.
- To avoid any risk of repayment liability, the local authority must carry out a needs assessment and put in place any care arrangements for meeting eligible needs before “the relevant day”. The relevant day is either the date when the NHS proposes to discharge the patient or the minimum period (2 days after the local authority has received the assessment notice), whichever is the later.
- The NHS body should tell patients and carers the discharge date at the same time as or before the local authority. Hospital staff may give the local authority an early signal of when discharge is likely to help their planning.
Discharge to assess placements
- The ‘discharge to assess’ care model is used for hospital patients who no longer need an acute hospital bed but still have short-term care needs. This care model allows for the discharge of a patient to a residential care placement on a short-term basis so a decision can be made about that person’s long-term care needs.
- A ‘discharge to assess’ placement can last up to six weeks. The Council funds the placement for this period. After four to six weeks, the Council will review the person’s care needs to decide whether they can return home or require 24-hour residential care.
Mental Capacity Act 2005
- The Mental Capacity Act 2005 provides a statutory framework for people who 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.
- This Act is accompanied by statutory guidance entitled the Mental Capacity Act Code of Practice (the Code of Practice).
- The Act makes clear that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. If there are doubts about a person’s capacity to make a specific decision, that person’s capacity should be assessed. This assessment should be specific to the decision to be made at a particular time.
- If a person is found to lack capacity to make a specific decision, a decision may be made on behalf of that person in his or her best interests.
- The Code of Practice allows for an Independent Mental Capacity Advocate (IMCA) to be appointed to support a vulnerable person who lacks capacity to make important decisions about his or her care and finances.
- 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’. 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. The threshold for meeting the CHC checklist is set relatively low.
- 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 DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
- The decision on whether or not a person is eligible for CHC funding rests ultimately with the local Clinical Commissioning Group (CCG).
- In March 2020, in response to the emerging COVID-19 pandemic, the government published the COVID-19 Hospital Discharge Service Requirements. This guidance set out that CCGs would not be required to complete CHC assessments for individuals on the acute hospital discharge pathway or in community settings for the duration of the COVID-19 emergency period. This guidance remained in place until September 2020.
- Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for. This is known as section 117 aftercare and can include accommodation.
- Ms E was a paranoid schizophrenic, she lived in sheltered accommodation with a care package twice a day. Ms D lived close and offered support. Ms E went into hospital in March 2019 following a collapse and was found to have a brain tumour. Following treatment, the hospital decided on 13 June 2019 that Ms E was medically fit to be discharged. The prognosis was that Ms E was unlikely to live longer than 12 months, and it was inevitable her condition would deteriorate over the following months.
- The complaint is about how long the process then took to discharge Ms E, as it took two months. Ms E wanted to return home. Both the Council and NHS Trust have a role in hospital discharge planning.
- Ms E returned to North Middlesex University hospital on 22 May 2019 for ongoing management following surgery at another hospital. The records show on 28 May hospital staff had discussion with Ms D and Ms E about what Ms E would need on discharge. It was evident Ms E’s needs had changed; she said she would not feel safe without 24-hour care.
- On 18 June 2019 the hospital made a referral to the Council that Ms E was ready for discharge and needed 24-hour care. Ms E was classed as a patient with High needs under the Council’s ‘Discharge Referral Guidance’. The Council had 24 hours to pass the case to a social worker; and did so.
- Despite the ‘ready to go’ guidance stating professionals should start planning for discharge on admission, the Council says it is established practice that referrals are made at the point the person is medically fit for discharge.
- The Council is then required to complete an assessment under the Care Act 2014 to assess Ms E’s care and support needs and decide how to meet any eligible needs. The Council completed Ms E’s care needs assessment between 17 June and 17 July. It decided Ms E needed support 24-hours per day. Ms E and Ms D wanted Ms E to return home with increased support from her current Care Provider who she was familiar and happy with.
- There is no timescale in law or guidance for the completion of a Care Act assessment. The Council has an internal performance measure of 28 days, which it met.
- All records support Ms E had a strong desire to go home and had been assessed as having capacity to make that decision. Medical professionals supported Ms E’s wish to go home. The records also support the prolonged hospital stay was having a detrimental impact on Ms E’s mental health.
- The Council is responsible to decide how best to meet someone’s care and support needs. In doing so they must take account of the person’s wishes and needs. It can also take into account the costs of different options if there is more than one way possible to meet the person’s care and support needs.
- The Council’s practice is for care and support plans to be authorised by the Care Authorisation Panel. Ms D and Ms E wanted Ms E to return to her home with her existing Care Provider, as felt this would best meet her needs, including her mental health needs. Ms D offered to provide overnight support and pay towards the care package if it would help achieve Ms E’s return home.
- The Council took Ms E’s case to the Care Authorisation Panel on 2 August to decide on the package of care. The panel refused to fund 24-hour care at home at that time; it would fund a care home as a ‘discharge to assess’ to meet Ms E’s needs for 24-hour care and allow further time to prepare for her to go home safely. Ms D was not happy with this decision and challenged it.
- At a second panel on 16 August the Council agreed Ms E could return home with a 24-hour care package, for a period of six weeks, to enable further assessment. This was based on Ms D providing care two nights per week and the Care Provider offering a discount, which brought the costs of the care package down and it became more comparable with a nursing home placement with one-to-one support for Ms E. The Council says it also considered Ms E’s declining health. The Council accepts there were some delays in making a final decision to try and find a compromise.
- Between the two Care Authorisation Panels taking place, there was an issue at the hospital with missed medication. The Council suggests this slowed down discharge plans. I have seen evidence health professionals were monitoring Ms E’s neutrophil levels with blood tests, but nothing to say Ms E could not be discharged with monitoring done in the community.
- Ms E returned home on 23 August 2019, with care from her existing care agency, which is what she had wanted. Ms E would have weekly blood tests to check her neutrophil levels. The Council did a home visit a few days later, Ms E was more settled in her behaviour now she was back home. The Council planned to visit weekly to monitor her progress. Ms E was readmitted to hospital in early September; her health deteriorated, and she was discharged home for end-of-life care; Ms E died at home a few days later, on 29 September.
Was there fault causing injustice?
- Ms D queried whether Ms E should have been provided with Section 117 aftercare to return home, because of her mental health. Ms E was not detained under Section 3 of the Mental Health Act for this hospital admission, so did not qualify for Section 117 aftercare. The care planning on this occasion was under the Care Act 2014.
- However, this does seem to have caused some confusion with consideration for Continuing Healthcare Funding (CHC), which was not considered because NHS staff thought the Council had a duty under Section 117. If the NHS had considered and accepted Ms E for CHC it would have been responsible to arrange and fund her care package. I cannot know whether if that had been the case it would have made any difference in how long it took Ms E to leave hospital.
- Discharge from hospital is a process and not an isolated incident at the end of the patients stay. Leaving a discharge referral until someone is medically fit for discharge creates a high risk of patients ‘bed-blocking’ and remaining in hospital longer than they need to. The Council needs some time to complete the Care Act assessment, especially where someone is not previously known to it, or whose needs have significantly changed – as was the case with Ms E.
- I find the NHS Trust did not give the Council as much notice as possible of Ms E’s impending discharge from hospital. The hospital notes on 28 May show it knew Ms E’s needs had changed, and Ms D and Ms E said they would not feel safe without 24-hour support. While in hospital Ms E was receiving one to one support. At this point it was evident the Council would need to assess Ms E’s possible change in care and support needs to enable hospital discharge. Had the NHS Trust contacted the Council sooner it could have started the Care Act assessment sooner, and likely would have prevented three unnecessary weeks in hospital. Leaving referral until the patient is medically fit for discharge goes against the ‘Ready to go’ guidance.
- Because of this complaint the NHS Trust has now improved its processes for its end-of-life pathway. The changes have strengthened support for ward areas to improve communication and engagement with community professionals and to seek timely but safe and effective discharges of care.
- I cannot say there was fault by the Council in its assessment of Ms E’s care needs, it completed Ms E’s assessment within the required 28 days. Ms E’s case then went through the process of the Care Authorisation Panel agreeing the appropriate package of care. This case took longer because Ms D did not agree with the proposals, and the Council further considered what it could offer because of this.
- Many areas have introduced ‘discharge to assess’ models of care – where people who are medically fit for discharge are provided with short term support to be discharged to their own home or a residential home, where assessment is undertaken. This model has reduced excess bed stays and increased patient and relative satisfaction. I asked the Council how it considered this and it confirmed the initial discharge plan was in line with the Discharge to Assess process. Pathway three focuses on patients who have completed an acute episode of care but are unable to return to previous place of care and need on-going care, which was the view of the Care Authorisation Panel. The Council says following the issues Ms D raised it will recommend to its health partners that they implement the Discharge to Assess model for mental health service users, which should strengthen the partnership with hospitals and improve communication.
- I do not have a record of how the Care Authorisation Panel made its decisions. It seems from case records the difference between the two panels on 2 August and 16 August was Ms D supporting two nights per week and the Care Provider giving a discount in cost. Ms D had offered to provide overnight support and to contribute financially to the package; this was known at the first panel. However, the Council says it agreed to a compromise following a multi-disciplinary meeting held on 12 August and a medical report on 15 August which said Ms E’s condition was likely to be more life limiting than originally thought. The Council decided it would be humane to offer care in an environment Ms E was familiar with. Therefore, it decided on a trial period at home for six weeks to review whether this was a safe and viable longer-term option.
- It is arguable the Council could have made this decision sooner and that it was always a humane option to go home given the impact on Ms E’s mental health from being away from home. But there is no fault in the process the Council followed to reach its decisions, and therefore no reason for me to criticise it even though it was not the outcome Ms D or Ms E wanted. Discharge to a care home to further assess someone’s needs is a decision the council can make, and it did so on the basis Ms E’s needs had significantly changed since she last lived at home and 24-hour care in a care home is cheaper than 24-hour care at home. These are valid reasons for its decision. There is evidence the Council and NHS Trust told Ms D it might not meet their preference for the 24-hour care to be provided at home.
- It is possible for a third party to ‘top up’ a care package, but this is where it is a genuine choice to choose a more expensive provider. The Council is responsible to meet assessed eligible care needs and must ensure there is at least one affordable and available choice and that any proposed package genuinely meets the person’s care and support needs.
- The Council accepts that although Ms D’s offer to provide support and contribute financially to allow Ms E to return home was brought to the attention of management, and those making the decisions, there was no response to Ms D about her offers. This leaves Ms D feeling her offers were not considered and wondering whether it might have made a difference to Ms E returning home sooner. The Council explains as the assessed need was for 24-hour care, to ensure support was always available a care provider would be most appropriate. Also given Ms E’s needs, a suitably trained and Care Quality Commission Registered provider was most suitable. The Council explains as the initial plan was for a six-week period to continue the care planning there was no cost to Ms E, so Ms D would not have been asked to contribute. The Council says following discussions with Ms D it has established practices to ensure it gives clearer information to families about Care Act assessments and discharge planning, who in the Council is responsible for making which decisions at each stage and whose duty it is to share information with families. This will include information relating to options around topping up or paying for care where this is appropriate and safe to do so. I am satisfied this is appropriate action in response.
- Ms D says the Council’s failure to respond to her offers of support affected her health. I cannot conclude it was solely this element of events that had such an impact on Ms D.
- I have no doubt Ms D was greatly distressed and impacted by her daughter’s stay in hospital, and of the demands on Ms D to support Ms E physically and emotionally. Ms D will have been distressed by witnessing Ms E’s distress, which is well documented. Much of this distress is caused by the situation with Ms E’s deterioration in health and being in hospital, rather than through fault of the Council or NHS Trust. However, I find the NHS Trust could have involved the Council sooner, so that it could complete the care planning sooner. Had that happened, it is likely Ms E could have returned home three weeks sooner than she did, so Ms D had three weeks of unnecessary distress caused by that delay.
- Ms D explains she was constantly getting called to the hospital to help encourage Ms E to get dressed, eat, take medication, or go to sleep. Ms D was often staying overnight in a chair at her daughter’s bedside, where she would get little sleep. Ms D had to have medication to help her sleep. On top of this she was witnessing Ms E’s distress at remaining in hospital. Therefore, the three unnecessary weeks of experiencing this had a significant impact on Ms D and Ms E. We cannot remedy any impact on Ms E as she has since died.
- To remedy the impact on Ms D and to prevent future problems, the NHS Trust will:
- Apologise to Ms D for not involving the Council sooner and pay Ms D £600 in recognition of her distress.
- Review its discharge policy to ensure it refers to the council as soon as it is aware a patient’s social care needs have changed and will most likely need support, or different support, on discharge.
- Apologise to Ms D for failing to respond to her offer to provide support and pay towards the care package if it would enable her to return home.
- I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Ms D.
Investigator's decision on behalf of the Ombudsman