The Ombudsman's final decision:
Summary: Mrs D complained about the way the Trust cared for her father, Mr F, when he attended its emergency department and during two hospital admissions. She also complained about the way the Council and Trust dealt with her father’s discharge from hospital to a care home. We have found fault in the Council’s and Trust’s record keeping and in the way the Trust managed Mr F’s continence care. The Council and Trust accept our recommendations, so we have completed our investigation.
- The complainant, whom I shall call Mrs D, complains about matters affecting her late father, Mr F. Mrs D complains about the actions of Hull University Teaching Hospitals NHS Trust (the Trust) and Kingston Upon Hull Council (the Council) between September 2020 and February 2021.
- Specifically, Mrs D complains that about the matters set out in paragraphs 3 to 8 below.
- The Trust failed to diagnose a subdural haematoma (a serious condition where blood collects between the skull and the surface of the brain) when Mr F attended the Emergency Department (ED) at Hull Royal Infirmary (HRI) on 16 September 2020.
- When Mr F was a hospital inpatient between September and October 2020:
- the Trust moved him unnecessarily between hospitals and wards after discharging him from the infectious diseases unit;
- the Trust assumed he had dementia without checking this was the case;
- the Trust’s communication with Mr F’s family was poor; and
- the Trust did not treat him for diagnosed conditions, including subdural haematoma.
- flawed record keeping by the Council and Trust led to incorrect decisions about Mr F’s welfare;
- the Council and Trust did not involve Mr F’s children in the discharge decision;
- Mr F did not receive physiotherapy or rehabilitation treatment; and
- the residential care home was unsuitable for Mr F’s needs.
- Mr F contracted COVID-19 as a result of his visit to the ED on 16 September 2020;
- the Council incorrectly charged Mr F for residential care; and
- Mr F’s discharge following admission to hospital in December 2020 was flawed.
What I have investigated
- I have investigated the complaints set out in paragraphs 3 to 7 above. I have explained at the end of this statement why I have not investigated the complaints in paragraph 8.
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.
- 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.
- 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)
- The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including Article 3: freedom from torture and inhuman or degrading treatment or punishment.
- The Act requires all local authorities – and other bodies carrying out public functions to respect and protect individuals’ rights.
- Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not 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.
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
How I considered this complaint
- I have considered the following evidence:
- information provided by Mrs D by telephone and in writing;
- written information from the Council and Trust, including records from the period of the complaint; and
- advice from doctors specialising in emergency medicine, radiology and elderly medicine, all of whom are independent of the Trust.
What I found
A – ED attendance in September 2020
- Mr F attended the ED on 16 September 2020, on the advice of his GP. Mr F had been unwell for the past week, with reduced urine output and periods of confusion. ED carried out an initial assessment and took standard blood tests. A doctor then assessed Mr F. The doctor observed that:
- Mr F was not confused at the time;
- his blood test results showed no significant abnormality; and
- examination of his heart, lungs and abdomen was normal.
B – Hospital admission September – October 2020
- Mr F attended the ED again on 21 September 2020. He was eventually admitted as an inpatient for a few weeks. He was discharged from hospital to a residential care home on 11 October 2020.
Moves between hospitals and wards
- On 21 September, Mr F moved from the ED to an Elderly Assessment Unit. The purpose of such units is to assess and manage elderly patients. The next day, he was admitted to an elderly care ward at HRI. Elderly care wards are set up to give older, frail patients a comprehensive multidisciplinary assessment not usually available on general wards.
- On 23 September, Mr F tested positive for COVID-19. The Trust therefore transferred him to an infectious diseases ward in another one of its hospitals, Castle Hill.
- On 6 October 2020, the Trust transferred Mr F to a non-COVID-19 ward at Castle Hill hospital because he had completed 14 days of isolation.
- The Trust says it transferred Mr F to the various wards because each ward was the most appropriate location for Mr F based on his condition at the time.
- I consider there was no fault in the way the Trust moved Mr F between wards and hospitals. This is because:
- the moves were in accordance with national guidance published by the National Institute for Health and Care Excellence (NICE), the Government and Public Health England (PHSE); and
- the Trust has provided good reasons for the moves.
- Mrs D says the Trust incorrectly assumed Mr F had dementia. I have seen no indication in the Trust’s records that its staff diagnosed Mr F with dementia or assumed he had this condition. I have therefore not upheld this part of the complaint.
Trust’s communication with Mr F’s family
- The Trust has documented 15 conversations with Mr F’s family over the three weeks he was in hospital. While the communication was not daily, it was regular and frequent enough. The written records of the conversations are brief but they indicate appropriate discussions about Mr F’s medical history, treatment and discharge plans.
- I have not found fault in the Trust’s communication with Mr F’s family.
Medical treatment during hospital admission September-October 2020
- The Trust treated Mr F for the following:
- aspiration pneumonia (a lung infection that can happen after inhaling food, vomit or saliva);
- subdural hygromas (subdural hygroma is a collection of fluid between the brain and skull);
- subdural haematomas (a subdural haematoma is a collection of blood between the brain and skull); and
- delirium (confusion).
C – Discharge from hospital to residential care
- The Government published national hospital discharge guidance in response to the COVID-19 pandemic in March 2020. It updated this in August 2020. This was the version that was in force at the time of Mr F’s discharge from hospital in October 2020. It applied to the Trust and the Council.
- 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. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
Flawed record keeping leading to wrong decisions about Mr F’s welfare
- The Trust’s records that I have seen for Mr F between 21 September and 11 October 2020 appear clear and accurate except for one point. On 6 October, the Trust completed a “Trusted Assessor Referral Form” which requested a residential care or “discharge to assess” bed for Mr F. The form said Mr F had mental capacity to consent to the referral. However, other records show the Trust and Council considered Mr F lacked the capacity to decide about his care, treatment and hospital discharge at that time.
- The Council’s records leading up to Mr F’s discharge to residential care state he had cancer. This was wrong. Mrs D says Mr F’s social worker told her this was based on Mr F’s medical records. However, I have not seen any medical records which state that Mr F had cancer. This incorrect recording is fault by the Council. I have found no other fault in the Council’s records.
- The inaccuracies above did not affect Mr F’s care. This is because:
- other documents correctly recorded that Mr F lacked capacity to decide about his discharge from hospital and his discharge was planned on that basis; and
- the incorrect recording of cancer as one of his medical conditions did not influence any decisions about his care or treatment.
Lack of physiotherapy or rehabilitation treatment
- Mrs D considers that Mr F should have received physiotherapy or rehabilitation treatment in a specialist unit after he left hospital in October 2020, rather than going into a residential care home. She said the Trust told her Mr F would be discharged to a specific rehabilitation unit.
- When replying to our enquiries, the Trust told us Mr F received residential care rather than rehabilitation because he lacked the cognitive ability to engage effectively with rehabilitation treatment at the time.
- The Trust’s medical records at the time do not show this reasoning. However, the records indicate that:
- the Trust’s initial plan was to discharge Mr F to “a rehab/care bed” and it discussed this with Mr F’s family; and
- between 2 and 11 October, Mr F was confused, disoriented and refused therapy.
Involving Mr F’s children in the discharge decision
- The available records indicate the Council and Trust involved Mr F’s adult children appropriately in the decision to discharge him into residential care. Their involvement was in line with government guidance, which says the person’s family must be informed of the discharge decision.
- The Council’s records also show the Council consulted Mr F’s children when it made a formal, documented decision that it was in Mr F’s best interest to move from hospital into residential care. I have found no fault in the way the Council reached this decision because:
- it acted in accordance with the Code;
- it consulted Mr F’s children and medical professionals;
- all parties agreed it would not be safe for Mr F to return home at that time;
- it noted that Mr F could not stay in hospital and that professionals considered he was unsuitable for rehabilitation; and
- it weighed up the benefits and risks of three different options before concluding a short stay in residential care was in Mr F’s best interests.
Suitability of residential care home
- The national discharge policy says that hospitals must discharge people who meet certain criteria “as soon as they are clinically safe to do so”. The guidance says people must be discharged under one of four pathways, two of which involve assessment of needs in residential placements. Because moving people out of hospital as quickly as possible was important during the COVID-19 pandemic, the placement may not have been the patient or family’s first choice.
- Mr F was discharged to a ‘discharge to assess’ placement in a residential care home on 11 October 2020. The available records show that the care home assessed Mr F and decided it could meet his needs. I have found no fault in how the care home assessed Mr F’s needs. The care home’s records for Mr F’s stay there indicate it was meeting his physical needs, but they show little detail of how it met his social and emotional needs.
- On 27 October, the Council re-assessed his needs and decided he could manage in his own home with help from carers and specialist equipment. The assessment record says the assessor considered staying at the care home was having a negative impact on Mr F’s mental health because of a lack of stimulation. Mr F told the assessor he did not think the care home was the right environment for him. The Council’s records say Mr F was less confused than when he left hospital and now had capacity to decide about his care, although this could fluctuate. Mr F moved back to his own home on 2 November, after 23 days in the care home.
- I have found no fault in the way the Council decided the care home would be suitable for Mr F’s needs for short-term residential care. This is because:
- the priority was for Mr F to move from hospital into an environment where he could stay physically safe while getting well enough to go home;
- at the time he was ready for discharge from hospital, Mr F was assessed as being unsuitable for a specialist rehabilitation placement and unsafe to go home;
- the Council properly considered Mr F’s best interests;
- the Home properly considered Mr F’s needs before it admitted him;
- records indicate the care home was able to keep Mr F safe and meet his physical care needs; and
- within less than three weeks, Mr F recovered enough to be able to return to his own home.
D – Continence care in hospital January – February 2021
- When replying to our enquiries, the Trust has accepted that its records for this period are inconsistent. Some records say Mr F was continent. Others say he was “occasionally” incontinent of urine. There records do not make it clear whether the hospital used incontinence products for Mr F. The records do not match Mrs D’s recollection, which is that the hospital treated Mr F as doubly incontinent and used incontinence products for him, even when they were unnecessary.
- The Trust has also accepted that its continence policy is out of date.
- I consider that Article 3 of the Human Rights Act was engaged because flawed continence care could potentially amount to degrading treatment.
- Given the inconsistency in the Trust’s records, I consider that:
- the Trust’s poor record keeping and failure to review the continence policy are faults;
- there is no evidence the Trust had due regard to Mr F’s Article 3 rights, which is also fault;
- Mrs D’s recollection is likely to be correct;
- this means it is likely that Mr F had to at times use incontinence products despite being continent; and
- this likely had a negative impact on his dignity.
- Within one month of our final decision, the Trust and Council will write to Mrs D to offer meaningful apologies for the faults identified in this statement and their impact on her and Mr F.
- Within one month of our final decision, the Trust will also review and, if necessary, update its continence care policy.
- I have found some faults in the Trust’s continence care and in record keeping by the Council and Trust. I have not upheld the remainder of Mrs D’s complaints about the Trust’s care and treatment of her father, Mr F or about the Trust’s and Council’s actions regarding Mr F’s discharge from hospital. I have completed my investigation because the Council and Trust have accepted my recommendations.
Parts of the complaint that I did not investigate
- I decided not to investigate Mrs D’s complaint that Mr F contracted COVID-19 as a result of his visit to the ED on 16 September 2020. This is because I considered that we would not be able to conclude, even on balance of probability, that Mr F contracted COVID-19 in the ED on 16 September 2020 and if so, that this was through fault by the Trust.
- Mrs D also complained that the Council incorrectly charged Mr F for residential care. I have not investigated this complaint because the Council has resolved it by providing a credit note.
- I have not investigated Mrs D’s complaint about the manner of Mr F’s discharge following admission to hospital in December 2020. This is because the Trust has apologised for what happened and an investigation by the Ombudsmen is unlikely to achieve more.
Investigator's decision on behalf of the Ombudsman