Summary: Mr B complained the Trust and the Council delayed his late mother’s discharge from hospital and kept her in hospital against her will on two occasions in December 2019. Mr B said as a result his mother, Mrs C, contracted a hospital acquired infection and this contributed to her untimely death. We found no fault in the way the Trust dealt with Mrs C’s first discharge from hospital. We found fault in the way the Trust and the Council dealt with Mrs C’s second discharge, and this meant she remained in hospital for longer than she wanted. The faults caused avoidable distress and frustration to both Mrs C and Mr B. However, we cannot link the claimed injustice to the fault identified. To put things right the Trust and the Council have agreed to our recommendations and will improve their practice in line with the Mental Capacity Act 2005, apologise to Mr B and make an acknowledgement payment.

The complaint

1. The complainant, who I shall refer to as Mr B, complains about the actions of Sandwell & West Midlands NHS Trust (the Trust) following his late mother’s admission to hospital in early December 2019. He says his mother made a capacitated decision to be discharged from hospital but a doctor working for the Trust used clinical judgement to overrule his mother’s wishes. As a result, he says his mother contracted a hospital acquired infection which later contributed to her untimely death. He also complains about a second hospital admission in late December 2019 and says the Trust and Birmingham City Council (the Council) did not act in with the Mental Capacity Act 2005 and illegally detained his mother in hospital which was against her capacitated decision to leave and return home.
2. Mr B says the events caused his mother avoidable distress and suffering which weakened her ability to fight against the infection. He also says he found the events traumatic and experienced distress and frustration which was intensified because of a previous upheld complaint about the Trust relating to similar matters. Mr B seeks for lessons to be learnt and a financial remedy to acknowledge the injustice caused.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. 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)).
5. 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.
6. 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)

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How I considered this complaint

7. I have considered information provided by Mr B in writing and by telephone. I have also considered information provided by the Council and the Trust in response to my enquiries. I have also considered two witness statements provided by Mr B.
8. All parties had an opportunity to respond to a draft of this decision.

Legal and administrative context

9. 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.
10. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
11. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.
12. The Mental Capacity Act 2005 introduced the ‘Lasting Power of Attorney’ (LPA), which replaced the ‘Enduring Power of Attorney’ (EPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision on their behalf. The decision must be in the person’s best interests.

There are two types of LPA:

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

13. Department of Health guidance: Definitions – Medical Stability and ‘Safe to Transfer’ (2003) (the ‘Safe to transfer guidance’) gives guidance on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for making this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is considered to be safe for discharge when:

• a clinical decision has been made that the patient is ready for transfer;
• a multidisciplinary team decision has been made that the patient is ready for transfer; and,
• the patient is safe to discharge/transfer.

A patient can be defined as clinically or medically stable if tests (such as blood tests and observations) are considered to be within the normal range for the patient. A patient is ‘fit for discharge’ when all relevant physiological, social, functional, and psychological factors have been taken into account. This can require a multidisciplinary assessment.

14. Section 42 of the Care Act 2014 says that a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

Background

15. Mrs C lived in the community with her son, Mr B. Mr B provided informal care to his mother and used private carers when necessary. Mrs C had a fall at home and went into hospital at the start of December 2019.
16. The hospital’s emergency department assessment indicated a fractured neck of femur which was later confirmed by x-ray as a specific type of hip fracture. Mrs C was then admitted to the hospital ward under the care of the Trust’s Trauma and Orthopaedic Team.
17. The Council received a safeguarding alert from the ambulance service following Mrs C’s admission to hospital. Concerns related to the condition of Mrs C’s property.
18. A clinician had a discussion with Mr B about the operative and non-operative options for Mrs C. Mrs C was scheduled to undergo therapy on 3 December, but the Trust said it could not proceed as planned because she had low potassium levels. The notes record that Mr B was keen to take Mrs C home as soon as possible following her surgery, within 48 hours, as he was concerned about her mental health. The clinician explained they would have to assess whether it was safe to discharge Mrs C home and whether she was medically fit for discharge.
19. Mrs C received intravenous fluids and the Trust completed surgery on
    4 December. The Trust said Mrs C’s rehabilitation therapy did not progress well because she declined to engage in therapy sessions sometimes. The Trust’s clinicians felt Mrs C should stay in hospital for continuing rehabilitation. The medical records state she was not yet medically fit for discharge on this date.
20. On 9 December the Trust’s officer had a discussion with Mr B and Mrs C. Mr B said both he and Mrs C had told the Trust’s clinicians that his mother wanted to go home with a care package. Mr B said his mother had an adapted property and access to private care at home should she need it. The officer also spoke to
    Mrs C and recorded in the clinical notes she was keen to go home.
21. The officer explained to Mrs C that her mobility would be affected as the rehabilitation was a long process. The officer also referred to the potential risk of falls if Mrs C went home early particularly if she was unable to walk as well as before her admission. The medical records summarise that Mrs C was able to understand the risks and recorded the following statement, “Mental Capacity Assessment Done… she probably does have capacity to decide re staying in hospital or going home.”
22. The notes record the advice from the Safeguarding Team which had said that once a mental capacity assessment was completed Mrs C could go home. There was some further discussion with Mr B and Mrs C about what equipment they had in place at home and any further equipment which may be needed to support
    Mrs C.
23. The next day there was a change in Mrs C’s presentation as she was unwell. The Trust’s clinician spoke to Mr B to explain that his mother had a high temperature and was coughing. The clinician told Mr B the Trust was treating Mrs C for a chest infection with intravenous antibiotics and fluids. The clinician said Mrs B would need to stay in hospital until she was better as she was not clinically fit for discharge. The notes do not record what Mr B said.
24. A clinician reviewed Mrs C again on 11 December. The medical records state she was unable to recall when she was unwell the previous day. The clinician told her she was being treated for a chest infection.
25. Mrs C was discharged home on 13 December with a course of oral antibiotics.
    Mr B said he would arrange a care package at home for his mother. The Trust also arranged for community district nursing care to start due to Mrs C having pressure sores.

Second admission to hospital

26. Mrs C was readmitted to hospital on 20 December with an increasing shortness of breath and a cough. The accident and emergency department also noted that
    Mrs C had a moisture lesion to her groin area.
27. Mrs C was transferred to a ward on the day of her admission. The medical records refer to a telephone call received from the Council’s Social Services Department. The Council’s officer said they had received a safeguarding alert from the ambulance crew, and they would be coming to visit Mrs C in the hospital.
28. Mrs C received care and treatment on the ward over the next couple of days. The nursing records noted she had some signs of confusion but at other times she was alert and verbally communicated her needs. Mr B continued to visit Mrs C while she remained on the ward.
29. A clinician recorded a discussion with Mr B following a review of Mrs C. The clinician told Mr B his mother was being treated for hospital acquired pneumonia and although her inflammatory markers were stable, she was significantly frail.
    Mr B said his mother did not like staying in hospital and he felt she was back to her normal self, being alert and chatty.
30. The next day on 24 December the medical records noted Mrs C was more alert and felt much better. Although she still had a cough, she was not experiencing shortness of breath. Mr B told clinicians he was managing fine at home to look after his mother. The notes also said Mrs C showed a strong will to go home and that she was frustrated with prolonged hospital stay.
31. A Council officer went to visit Mrs C in the hospital following the safeguarding referral received. Mr B was present at the visit at the time. The officer explained the purpose of her visit and proceeded to ask Mrs C and Mr B specific questions. The officer noted Mrs C had now regained capacity but did not record which specific decision was being considered. The officer documented a discussion about a package of care and Mrs C’s preference to have carers in addition to support from Mr B. Mr B asked the officer if his mother could go home, and the officer said she would discuss it further with her manager.
32. On the same date a nurse recorded a face-to-face discussion with the Council officer who had said there was no restriction on Mrs C being discharged home and the safeguarding investigation could continue regardless. Later the same day the hospital telephoned the Council and was advised that Mrs C should not be discharged while the safeguarding investigation was ongoing.
33. Mr B continued to represent his and his mother’s view that she should be discharged home. He was conscious of the festive period and wanting his mother to be at home. He was also conscious of the impact on his mother’s mental health as he said she did not like institutions.
34. The Trust’s officers continued to contact the Council’s Social Work Team to query whether Mrs C should be discharged home. The Council’s notes record a conversation which said, Mrs C should remain in hospital until a package of care and the safeguarding enquiries had been completed. During one phone call a nurse on the ward said Mrs C had capacity to make decisions and she wanted to go home. The Council’s officer in the Out of Hours Team advised this may be unwise but said they would ask a manager to call back.
35. A further phone call on 25 December confirmed the Trust had completed a mental capacity assessment. This concluded that Mrs C had capacity to decide about her care arrangements and should be discharged home that day. The Council officer said they would not support a discharge home because of the safeguarding concerns and a package of care would need to be put in place.
36. The Trust’s records show that it had not received a copy of the safeguarding alert from the Council, so its staff was not fully aware of the details. The Trust’s officer spoke to Mrs C and Mr B who indicated that they were aware of the allegations. Mrs C denied the allegations and said Mr B had cared for her for many years.
37. A clinician spoke to Mr B at 11.00pm while Mrs C was asleep. Mr B said he felt his mother was being held against her will and he had contacted the High Court in London for advice about releasing his mother from hospital. The rep said his mother was assessed as having capacity to make decisions and his mother had said during the day that she wanted to go home.
38. The clinician referred to the safeguarding concerns raised by the ambulance service and said someone from social services would visit Mrs C in the morning with formal safeguarding paperwork. The clinician also said the nursing night staff had discovered a grade three pressure sore so a Tissue Viability Nurse (TVN) referral would be made. The clinician said Mrs C should not be discharged overnight in view of the pressure sore concern and the open safeguarding investigation.
39. The Council’s officers and the Trust’s officer continued to have discussions about concerns surrounding Mrs C’s discharge in view of her and Mr B’s decision that she should be discharged home. The Council received additional safeguarding information from the Trust which related to a disclosure made by Mrs C which alleged her previous hospital admission was caused by a fall following a disagreement between her and Mr B.
40. During a meeting on 26 December the Complex Discharge Team discussed ongoing medical input which could prevent Mrs C from being discharged home. This included separate reviews needed from the Tissue Viability Nurse, Physiotherapist and Occupational Therapist. The Matron explained that Mrs C needed to be weaned off oxygen before discharge. The records note that officers had no concerns with Mrs C making informed decisions and choices.
41. The records refer to Mr B’s frustration with the situation and his decision to consider legal action. Mr B’s solicitor contacted the ward on his behalf about his mother’s discharge. The Nursing Team referred the solicitor to the Trust’s Legal Team due to data protection laws.
42. The Social Services Team visited Mrs C’s property on 27 December and noted the property was in the process of being cleaned. The progress note stated it was possible Mrs C could be discharged on this date.
43. The Safeguarding Adults Team also went to visit Mrs C in hospital to discuss the safeguarding alert. Mrs C made it clear she did not want the safeguarding pursued. She said her son, Mr B was good, and he would never do anything to hurt her. The social worker noted the allegation would be closed at the concern stage. Mrs C agreed to accept a package of care in the community.
44. Mrs C was discharged home on 28 December. The District Nursing Team agreed to provide follow up for pressure sore care from 30 December. Mrs C passed away on 15 January 2020.

Findings

How the Trust and the Council dealt with Mrs C’s first discharge from hospital

45. The MCA says that capacity should be presumed in the first instance. When assessing a person’s capacity to make decisions the first step is to assess whether they have an impairment or disturbance of the mind or the brain. If they do not have an impairment or disturbance of the mind or the brain, then they do not lack capacity.
46. Organisations such as the Council and the Trust should have due regard to the MCA Code of Practice. Those people who have been appointed attorneys and where an LPA has been registered should also have due regard to the Code of Practice. An attorney has no decision-making power if the donor can make their own decisions.
47. From the information provided by the Council and the Trust the evidence available supports the view that Mrs C had capacity to decide whether to stay in hospital or whether to be discharged. This is the case for both hospital admissions.
48. Mr B said his mother expressed a choice to go home earlier than 9 December 2019. The documentary evidence I have seen only refers to his view at the time. The evidence available shows that Mr B was keen to take his mother home soon after her operation, but clinician said they did not know if this was possible. It was not until 9 December 2019 when Mrs C said she was keen to go home. This was when an officer completed a mental capacity assessment.
49. The Council had not yet progressed the safeguarding concern raised by the Ambulance Service so was not investigating at this stage. When it was contacted by the Trust about the first discharge it raised no objections.
50. Mrs C was not discharged from hospital on 9 December. However, on the evidence I have considered this was not because the Trust did not have due regard to the principles set out in the MCA. A physiotherapist discussed discharge plans on this date and it is likely discharge planning was underway. Mrs C became more unwell on 10 December and there was a change in her presentation. When this happened, the Trust communicated with Mr B about the best course of action necessary. It also discussed its treatment plans further with Mrs C.
51. The documentary evidence does not show further repeated requests from Mrs C to be discharged sooner than she was. Prior to the discharge there were continued discussions about equipment Mrs C needed at home. A manual handling plan was also completed. On balance, I do not find fault in the way the Trust dealt with Mrs C’s discharge from hospital or that it held her against her will during this admission.

How the Trust and the Council dealt with Mrs C’s second discharge from hospital

52. Mrs C’s hospital admission on 20 December coincided with the Council’s action to process the earlier safeguarding alert from the Ambulance Service. The evidence available shows the Council delayed acting on the safeguarding alert received from the Ambulance Service. The Council received the alert on 3 December, but it did not contact the hospital until 20 December. This is fault.
53. If the Council had acted on the referral without delay it is likely it could have investigated the concerns during the first admission. It is likely the Council’s delay contributed to Mr B’s uncertainty around Mrs C’s second discharge from hospital. When responding to Mr B’s complaint the Council apologised for not making him aware about the safeguarding alert sooner.
54. When Mrs C expressed a desire to be discharged which was supported by Mr B the Trust contacted the Council. By this stage the Council had already contacted the Trust to arrange to visit Mrs C about the safeguarding alert. The Council said the discharge was ultimately the Trust’s decision. After the Council’s contact with the Trust about the safeguarding the Trust continued to defer to the Council for advice about whether it should discharge Mrs C. The evidence available shows the Council gave instruction to the Trust which suggested it should not discharge
    Mrs C while the Council was considering the safeguarding concerns.
55. I have not seen documentary evidence to show that Mrs C had an impairment or disturbance in the functioning of her mind or brain. The Trust and the Council both noted that she had capacity. Mrs C’s choice was to be discharged home as soon as possible. Mr B also explained that prolonged hospital stays had an adverse effect on his mother’s mental wellbeing.
56. The evidence available shows the Trust had legitimate concerns about Mrs C’s medical condition and her clinical care and treatment was ongoing. The Council also had legitimate concerns about Mrs C because of the safeguarding allegations it had received. Officers referred to the discharge being unwise but they should have been mindful of the MCA which says a person can make unwise decisions when they do not lack capacity.
57. The Council and the Trust did not support Mrs C when she made a capacitated decision to be discharged from hospital sooner than she was. This is fault. It is likely that both Mrs C and Mr B experienced avoidable distress and frustration because of the fault. This was likely exacerbated by the fact this happened over the festive period when her preference was to be in her own home with her family.
58. I also note that Mr B had cause to complain to the Trust about Mrs C’s earlier admission in 2016 which was investigated by the Parliamentary and Health Service Ombudsman (PHSO). That investigation found fault by the Trust as its capacity assessment and urgent authorisation to deprive Mrs C of her liberties, were not in line with the MCA. Mr B said his mother was concerned about returning to hospital in the future because of faults by the Trust. This is likely to have compounded the injustice both she and Mr B experienced in late December 2019.

Mr B’s view the Trust’s actions contributed to his mother’s death

59. Mr B said the actions of the Trust directly contributed to his mother’s death. He said his mother gained a hospital acquired infection (HAI) during her first admission when she was held against her will. He said this then led to pneumonia which was the main cause of her death.
60. As set above I have not found fault in the way the Trust dealt with Mrs C’s first discharge in early December 2019. Mrs C had expressed keenness to be discharged earlier. However, because of a change in her health the discharge did not go ahead. I have not found this was because of fault by the Trust.
61. The Trust provided an explanation to Mr B in a report following its review of
    Mrs C’s medical records when it investigated a complaint. It said during the first admission Mrs C received antibiotics for cover against developing a chest infection. It said it was likely Mrs C started to develop a chest infection before her admission. The Trust has not said what clinical standard it followed to reach this view.
62. Mr B gained access to his mother’s medical records and provided information to us which noted that a clinician had recorded ‘patient was commissioned on intravenous antibiotics for pneumonia’.
63. I have reviewed Mrs C’s medical records and found that on 3 December 2019 the notes state, ‘commence IV abx to cover chest’. This fits in line with what the Trust said.
64. On 13 December a clinician entered discharge summary information. Part of this information says, ‘patient was commenced on intravenous antibiotics for pneumonia, which was confirmed on chest xray, we monitored her inflammatory markers and their trend responded well to a course of IV antibiotics. Her chest is now clear and stable, however she will need to complete a further course of oral antibiotics.’ This fits in line with what Mr B said. This information was also forwarded to Mrs C’s general practitioner (GP) for follow up.
65. I am unable to say whether Mrs C started to develop a chest infection or pneumonia before her admission or after she was admitted. In any case, I have not found fault in the way the Trust dealt with Mrs C’s first discharge so I cannot say Mrs C acquired a hospital infection because the Trust held her in hospital against her will. This is Mr B’s claimed injustice.
66. Mr C said his mother developed a groin infection because of poor care by the Trust during his mother's admission from 20 December. He said she did not develop a groin infection until 26 December onwards.
67. When Mrs C went into hospital on 20 December the Accident and Emergency (A&E) Department recorded Mrs C’s presenting symptoms as shortness of breath. The A&E Department also noted that she had a moisture lesion to her left groin and completed an incident report. I have not seen evidence to show fault by the Trust led to Mrs C developing the moisture lesion in her groin area from 25 or 26 December onwards.
68. However, The Trust failed to complete a safeguarding referral as noted in the records. This is fault. Had the Trust completed the safeguarding alert as it should have this would have provided an opportunity to investigate the cause of the moisture lesion in line with vulnerable adult safeguarding procedures.
69. The Trust diagnosed Mrs C with hospital acquired pneumonia during this admission. She received intravenous fluids and antibiotics. As I have not found fault with the first discharge, I cannot link Mrs C’s diagnosis during this admission to fault caused by the Trust.
70. Nevertheless, I acknowledge the faults identified may cause Mr B to experience uncertainty about the circumstances leading up to his mother’s death. Because Mrs C has passed away, I cannot remedy the injustice caused to her.

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Recommendations

71. The Council and the Trust have agreed to our recommendations and within four weeks of the date of our final decision:
• the Trust and the Council will write a joint letter of apology to Mr B to apologise for the avoidable distress and frustration he and his late mother experienced when they failed to deal with her second discharge from hospital in line with the principles set out in the Mental Capacity Act 2005.
• the Council will pay Mr B £250 to acknowledge the adverse impact its faults had on him. This includes his avoidable distress when dealing with the discharge and his uncertainty relating to its delay when dealing with the safeguarding alert.
• the Council will remind its officers of the importance of being mindful of the Mental Capacity Act 2005 when dealing with safeguarding reports. It will also consider whether any training is necessary for its officers.
• the Trust will pay Mr B £350 to acknowledge the avoidable distress and frustration he experienced when it failed to deal with his mother’s second discharge from hospital in line with the law. The symbolic payment also recognises his compounded injustice from an earlier complaint.
• the Trust will review its safeguarding procedures and remind its officers of the importance of reporting safeguarding concerns in line with established good practice and statutory guidance.
• the Trust will provide us with a copy of the action plan it developed from the PHSO investigation and confirm what actions it has completed. It will review the findings of this investigation to determine what further lessons can be learnt and confirm what it has done to improve.

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Final decision

72. I have considered all comments provided and found fault causing injustice. The Council and the Trust have agreed to our recommendations and this remedies the injustice caused. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman