Summary: The Ombudsmen found fault by the Council in not adequately explaining the reasons it could not allow the complainant to act as a second carer for his partner. However, the Council has already accepted this fault, explained the reasons and apologised. The Ombudsmen have not found fault by the Council or the Trust about an admission to hospital or that it was acting against an individual’s wishes to keep them in hospital.

The complaint

1. Mr X complains about the care of his late partner, Mrs Y between December 2020 and February 2021 by Norfolk and Norwich University Hospitals NHS Foundation Trust (the Trust) and Norfolk County Council (the Council). Specifically he complains that:
• when Mrs Y attended the Emergency Department (ED) on 3 December 2020, she was admitted to a ward against her will. Mr X says she was medically fit for discharge and had mental capacity to make her own decisions;
• the Council would not allow Mr X to be a carer for Mrs Y. This delayed her discharge home while a care package was put in place;
• the Trust and the Council did not listen to Mrs Y’s wishes that she wanted to return home, effectively depriving her of her liberty;
• the Trust and the Council would not listen to Mr X and would not answer concerns about Mrs Y’s mental capacity;
2. Mr X says the hospital admission caused Mrs Y distress and may have worsened her multiple sclerosis (MS) symptoms. He says not having her at home also caused him significant distress.
3. Mr X is seeking apologies and for improvements to be made to prevent anyone else going through what he and Mrs Y experienced. He is also seeking a financial remedy to reflect the distress caused by the failings.

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The Ombudsmen’s role and powers

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), as amended).
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 considered written information from Mr X and discussed the complaint with him. I also considered information from the Council and the Trust including Mrs Y’s relevant health and social care records. All parties had an opportunity to comment on a draft of this decision statement and I have considered all comments received.

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What I found

Background

8. Mrs Y moved to live with Mr X having previously lived in a care placement. She had advanced MS and used a wheelchair. At the point she moved from the care home, it was recorded that Mrs Y needed a hoist and help from carers to transfer.
9. When Mrs Y moved from the care home she had declined a package of care. Mr X had trained and worked as a carer and was to provide care to meet Mrs Y’s needs.
10. The day after the move, Mrs Y had severe jaw pain. An ambulance crew attended and took Mrs Y to hospital. The ambulance crew raised concerns about the house being “cluttered” and there not being enough room for Mrs Y to move safely. The Trust raised a safeguarding alert about the suitability of the property and there being no formal package of care in place for Mrs Y.
11. Mrs Y was admitted to hospital from ED while the Council arranged a package of care. Mr X could not visit Mrs Y during her hospital admission because restrictions were in place because of COVID-19. A mental capacity assessment completed the following day confirmed Mrs Y could understand and make decisions around her care.
12. Mrs Y agreed she would like a package of care in place to enable her to safely return home. This included the need for two carers to help Mrs Y mobilise. Mr X had asked to be one of the carers, however the Council could not source a care agency that was willing to deliver this care package with Mr X as a second carer. The Council subsequently arranged a care package with two carers and Mrs Y returned home.
13. Mrs Y had two further hospital admissions in December 2020 and January 2021. She also tested positive for COVID-19. Sadly Mrs Y died soon after her discharge from hospital in January 2021. The events in the later hospital admissions and clinical care by the hospital are being considered as part of a separate complaint to PHSO.

Administrative and legal context

Mental Capacity Act

14. 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.
15. 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.

Deprivation of Liberty Safeguards (DoLS)

16. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 that came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no other less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without authorisation, a deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to ensure that any deprivation of liberty is lawful. The Government issued a DoLS Code of Practice in 2008, to serve as statutory guidance on how DoLS should be applied in practice.
17. If there is a conflict about a deprivation of liberty and all attempts to resolve it have failed, the case can be referred to the Court of Protection.

COVID-19 restrictions

18. At the time of the events complained about, a number of restrictions were in place in most of the UK because of the COVID-19 pandemic. This included no mixing of households indoors, apart from support bubbles. Most visiting at hospitals was also severely restricted.

Analysis

Admission to hospital

19. Mr X says when Mrs Y attended ED on 3 December 2020, she was admitted to a ward against her will. He says she was medically fit for discharge and had mental capacity to make her own decisions.
20. The records show the ambulance service raised concerns about Mrs Y’s safety at home because it appeared cluttered and she did not have a formal package of care in place. The clerking record in the ED noted Mrs Y had jaw pain, but she appeared confused and the clinical staff could not take a clear history. It also noted that Mr X was not clear about what medications Mrs Y was prescribed. The ED recorded Mrs Y was medically fit for discharge and referred her for review of any social care needs.
21. The records show the Trust staff considered Mrs Y’s mental capacity. During an assessment by the Community Access Team in the afternoon, the Trust recorded Mrs Y could recall events and retain information. It had no concerns about her mental capacity. At that time Mrs Y was declining a care package and the plan was for her to return home. However, the Council contacted the ED later that afternoon and advised it did not consider Mrs Y would be safe to return home without a package of care in place. This was supported by information the ambulance crew had provided. There were no carers available that evening, so it planned to start a care package the following day.
22. The records also show the Council spoke to Mr X about this. The Council noted Mr X recognised he was struggling to meet Mrs Y’s needs by himself, which were much higher than he thought. The records show he agreed Mrs Y should have double up care in place when she returned home.
23. Clinical records later that day noted Mrs Y talked about feeling like she was a burden on Mr X and she felt he was struggling to manage. Mrs Y said she would feel better if some extra care was in place.
24. Because of the safeguarding concerns the ambulance service had raised, it was appropriate the Council considered a package of care for Mrs Y. Evidence in the records show the Trust and the Council worked together to ensure discharge from hospital was safe for both Mrs Y and Mr X. The records show by the end of the day Mrs Y and Mr X both accepted care was needed to allow Mrs Y to return home safely. Mrs Y’s mental capacity was not relevant in the decision to keep her in hospital.
25. I do not find fault by the Trust or the Council. I have seen no evidence Mrs Y was kept in hospital against her will. Mrs Y was ready to return home, but this could not go ahead until a care package was in place. The records show Mrs Y and Mr X supported this plan.

Mr X acting as second carer

26. Mr X complained the Council would not allow him to be a carer for Mrs Y. The records show the Trust’s occupational therapist assessed Mrs Y as needing two carers to help her mobilise and transfer. They requested double up care, four times a day with Mr X as the second carer. The records show the Council had no objections to this in principle and it tried sourcing a care agency to meet these needs.
27. The Council spoke to Mr X on 7 December and advised it was sourcing a suitable agency to provide the care package for Mrs Y with him as second carer. The following day the Council spoke to Mr X again. He said he would be happy for a care package to be put in place with two carers if this was likely to cause a delay. The records show the Council identified suitable care agencies, but they stated they could not agree to Mr X being the second carer. They said this was due to “health and safety”.
28. The Council’s complaint responses to Mr X explained the reasons for the care agencies not accepting him as a second carer were because of health and safety. It later clarified this was about managing the safety and risk around transmitting COVID-19. It apologised if it did not communicate this clearly at the time.
29. In response to the Ombudsmen’s enquiries, the Council accepted it could not say whether it explained why it could not accept Mr X as a second carer to him in a timely manner. It repeated its apologies for this.
30. There is evidence the Council discussed with Mr X whether he could act as a second carer and that it explored this with its care agencies. The records show the agencies were not willing to accept Mr X acting as the second carer, but they do not record explicitly this was due to COVID-19 restrictions. Given the timing it is reasonable to assume this was a factor as there were strict restrictions in place about mixing with people outside of households.
31. The nature of two carers moving someone would mean unavoidable close contact. However, I have seen no evidence the Council discussed this with or explained it to Mr X. This left him feeling excluded from providing care for other reasons, which he understandably found upsetting. I can see from the records some of the discussions between the Council and Mr X were difficult. I also acknowledge there were extra pressures on organisations because of COVID-19 restrictions, but none of this should have prevented the Council from explaining the situation clearly to Mr X or recording what was said.
32. The failure to clearly communicate the reasons for not allowing Mr X to act as a second carer is fault. This has already been accepted by the Council. It has since explained the reasons and apologised to Mr X. I consider this is a proportionate and fair outcome.

Consideration of Mrs Y’s wishes

33. Mr X complains the Trust and the Council did not listen to Mrs Y’s wishes that she wanted to return home and effectively deprived her of her liberty.
34. The Council was sourcing a care package based on information it received from the Trust. The Trust did not make any DoLS referral to the Council to keep Mrs Y in hospital. I have seen no record of any direct contact between Mrs Y and the Council while she was in hospital about her not being allowed to return home. I am satisfied the Council did not take any action to keep Mrs Y in hospital against her will and therefore I have found no fault.
35. The Trust completed a MCA mental capacity assessment on 4 December 2020. It noted Mrs Y had some longstanding confusion and some memory impairment, but she understood her care needs. The Trust therefore considered Mrs Y had capacity to make decisions about her care.
36. The records show Mrs Y was worried about the strain on Mr X and agreed that a package of care should be put in place. It is recorded that Mr X also agreed with this. It is recorded that Mrs Y understood she would need to stay in hospital until the care package was sourced.
37. On 7 December the records show Mr X spoke to the occupational therapist at the hospital by telephone. Mr X expressed concerns that Mrs Y could not return home and was being kept in hospital against her will. The occupational therapist explained a referral had been made to social services to source a package of care. The occupational therapist also explained that Mrs Y had capacity and understood this.
38. The Trust spoke to Mrs Y the following day to check her understanding. It specifically checked if she was happy remaining in hospital until the package of care was put in place, or whether she wanted to return home without this in place. It is recorded that Mrs Y said she wanted to wait for the package of care. The Trust recorded there was no reason to question Mrs Y’s ability to understand or make decisions about her care at this point. With Mrs Y’s consent, the Trust explained her decision to Mr X.
39. The records do not support that Mrs Y was in hospital against her will. While the records are clear she wanted to return home, the Trust recorded she understood the reason for putting a package of care in place first. The records show the Trust was clear with Mrs Y that she could have returned home sooner if she wished to, but the care package may not have been in place. She told the Trust staff she was willing to wait in hospital while her care package was arranged.
40. It also fully considered Mrs Y’s mental capacity and kept this under review throughout her stay. I have therefore not found fault in the Trust's actions in this regard.

Concerns about mental capacity

41. Mr X says the Trust and the Council would not listen to him and would not answer concerns about Mrs Y’s mental capacity.
42. The records show the Trust considered Mrs Y’s mental capacity at various points during her hospital admission. At no point did the Trust consider Mrs Y lacked capacity to make decisions about her care, although the Trust recorded she had some confusion when she was in the ED.
43. The Trust has advised the Ombudsmen that Mr X and Mrs Y had direct communication with each other during her admission. Given Mrs Y had capacity, the Trust did not need to discuss details about her care or mental capacity unless she consented.
44. The records show the Trust shared information on several occasions with Mr X when Mrs Y consented to this. It is not clear from these records whether it specifically discussed mental capacity in these conversations.
45. Mrs Y’s mental capacity did form part of a conversation between the Trust and Mr X on 8 December. The Trust explained Mrs Y’s agreement to stay in hospital during this call. I have seen no further records or transcripts of telephone calls to show when or if mental capacity was discussed.
46. As there is a record of some discussion about Mrs Y’s mental capacity (that the Trust had no concerns) and in the absence of any further evidence, I do not find fault by the Trust.
47. Although the Council did not complete MCA assessments, the records show Mr X had some telephone discussions with the social care team about this. The records show the social care team explained that it had not assessed Mrs Y’s mental capacity and it did not have more detail about this because they were not on the ward. It explained that if Mrs Y had capacity, she would be free to leave the hospital should she wish to.
48. While the information the Council could discuss about Mrs Y’s mental capacity was limited, the records show there was discussion about this and the Council gave Mr X appropriate information. I do not find fault by the Council.

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Decision

49. I have not found fault by the Trust or the Council about the decisions to admit Mrs Y to hospital or that they acted against her wishes. I have not found fault about the discussions concerning Mrs Y’s ability to understand and make decisions about her care. I have found the Council was at fault in explaining why Mr X could not be a second carer when Mrs Y returned home. However, the Council has since explained the reasons for this and apologised to Mr X. I consider this is a reasonable and proportionate outcome to this part of the complaint. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman