Summary: The complaint is about the late Mrs B’s care in hospital, in a nursing home and by her GP. We have upheld complaints of poor discharge planning by a council and clinical commissioning group. We have upheld a complaint against an NHS trust for making a safeguarding referral unnecessarily. We have also found poor record keeping by a nursing home. We have not upheld complaints about poor care in the nursing home, about GP care or about the trust discharging Mrs B to the nursing home. We have made recommendations for payments and apologies to remedy the distress to Mrs B’s family.

The complaint

1. Mrs A complains about her late mother Mrs B’s care and treatment by
• Dudley Metropolitan Borough Council (the Council),
• Dudley Clinical Commissioning Group (the CCG),
• Dudley Group NHS Trust, (the Trust) Lions Health Centre (the GP) and
• Comberton Nursing Home (the Nursing Home)
2. Mrs A complains:
1. the Council and CCG failed to provide an appropriate and safe home care package for Mrs B from April/May 2016;
2. the Council and CCG failed to communicate effectively with each other and with them regarding Mrs B’s care needs assessments and care planning;
3. the Council failed to use the dispute resolution procedure with the CCG in or around July 2016 and in May 2017 despite considering Mrs B had a primary health need;
4. the Trust wrongly made a safeguarding referral to the Council stating that the family were not letting Mrs B go into a nursing home when Mrs B did not want to go into a nursing home;
5. the Council failed to investigate and act on safeguarding concerns raised by the family regarding Mrs B’s lengthy stay in hospital and regarding failings by the Nursing Home in October/November 2017;
6. the Council refused to implement a home care plan drawn up in June 2016 by the Chair of a safeguarding panel;
7. the Trust threatened Mrs B with legal proceedings in October 2016 and April 2017 and continually subjected her to unnecessary mental capacity assessments;
8. Mrs B was moved to the Nursing Home against her wishes, and the Trust denied her the opportunity to seek advice from a solicitor or family;
9. Mrs B received poor care at the Nursing Home. She was left unattended for long periods of time despite this being unsafe, there was no regular access to fluids despite having kidney failure, there was poor nutrition, poor nursing care and care records were not being maintained;
10. Mrs B’s haemoglobin levels dropped below transfusion levels but her GP refused to readmit her to hospital;
11. The GP, Nursing Home and a consultant from the Trust refused to complete a fast track application for NHS continuing healthcare;
3. Mrs A says these faults caused significant avoidable distress to Mrs B. Mrs A says she also suffered avoidable distress and time and trouble in complaining. She would like a financial remedy and an apology.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to consider complaints about health and social care. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. We provide a free service, but must use public money carefully. We may decide not to continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
6. We 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).
7. If it has, we 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.
8. If we 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

9. I considered Mrs A’s complaint to us, responses to her complaint by the Council, CCG and GP and documents described later in this statement. I considered clinical advice from one of our GP advisers. A colleague discussed the complaint with Mrs A by phone. The parties received a draft of this statement and I took comments into account.

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What I found

Relevant law and guidance

The Mental Capacity Act 2005

10. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. The Code of Practice sets out steps organisations should take when considering whether someone lacks mental capacity. Both the MCA and the Code presume adults have capacity to make a decision unless there is a doubt. If there is a doubt, then there should be an assessment of the person’s capacity to make the decision in question.

Guidance on hospital discharge planning and Continuing Healthcare

11. Department of Health guidance: Ready to Go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) has key steps for those responsible for planning a patient’s discharge from hospital, 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 the decision;
• involve patients and carers so that they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence;
• Co-ordinate care-planning effectively.

NHS continuing healthcare

12. NHS continuing healthcare (CHC) is a free package of care arranged and funded by a person’s Clinical Commissioning Group (CCG) where a person has been assessed as having a primary health need. Continuing healthcare funding can be provided in any setting and can be used to pay for a person’s nursing home fees or for a package of care in their home. A health or social care professional to complete a checklist which may lead to a full assessment called a Decision Support Tool which contains a recommendation about eligibility at the end. Some CCG’s, including the one in this case, hold panel meetings to discuss the completed DST and any differences in view about the person’s needs. The person and their representatives can attend. At the end of the panel meeting, the CCG panel members made a recommendation.
13. If a person disagrees with the CCG’s decision that they are not eligible for CHC, they can ask the CCG to review its decision. If they disagree with the outcome of the review, they can appeal to an Independent Review Panel (IRP) organised by NHS England. The final stage is to refer the case to the Health Service Ombudsman. We cannot decide a person’s eligibility for CHC. Rather, we look at the way the IRP considered the case.
14. An IRP cannot be used to challenge the type or location of continuing healthcare funded services or the content of a care package. This should be dealt with as a complaint.
15. Sometimes a council disputes a decision by the CCG that a person is not eligible for CHC. If so, the National Framework for Continuing Healthcare (the National Framework) says there should be a dispute resolution process. Neither a council nor a CCG should unilaterally withdraw from an existing funding arrangement without a reassessment and without consultation between the bodies and the person.
16. CHC funding is also available to those with a terminal condition. A fast track application for CHC funding ensures that individuals who have a “rapidly deteriorating condition, which may be entering a terminal phase” get the care they require as quickly as possible. The fast track tool is completed by a clinician. On receiving a completed fast track tool, the CCG must decide the person is eligible for CHC. Action should be taken urgently to agree and implement a care package. Fast-track funding should not be stopped without there being a review (including completing a fresh DST.)
17. The National Framework requires CCG’s to identify and arrange all services required to meet the health and social care needs of those eligible for continuing healthcare. They should commission services using models that reflect the individual’s preferences, maximise control and personalisation and ensure commissioning is personalised.
18. The National Framework includes guidance where a person’s preference is for care that is more expensive than other options. It says where a person wants to be supported at home, the actual cost of doing this should be identified on the basis of their assessed needs and that cost has to be balanced against other factors in the case.
19. The National Framework and practice guidance explains how continuing healthcare should fit in with hospital discharge procedures:
• It is preferable for continuing healthcare eligibility to be considered after discharge from hospital when the person’s long-term needs are clearer and for NHS-funded services to be provided in the interim including an interim package of support at home or in a care home. Before interim services come to an end, a decision on continuing healthcare should be made;
• Social care practitioners should work jointly with NHS staff and should be involved as part of the multidisciplinary team;
• In some cases, it can be appropriate for both a checklist and the DST to be completed in hospital but only where it is possible to identify the person’s long-term needs and there is enough time to identify an appropriate care package or placement that fully takes into account preferences.
20. Personal health budgets give people who receive CHC funding (including fast-track funding) more choice about who provides their care, where their care is received and their preferred place of death. A personal health budget can be managed in one of three ways – by the CCG, by a third party, or by the person (or a representative) holding the money in a bank account and taking responsibility for buying care and support. A legal right to a personal health budget in CHC has been in place since 2014.

The Care Act 2014

21. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs.
22. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). A council can meet eligible needs by providing or arranging care and support at home, in a care or nursing home or in other ways.
23. If a council decides a person is eligible for care following an assessment, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person.
24. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute.
25. A person who is eligible for care and support may ask the authority to arrange their care for them. Or instead, they may ask for a direct payment. This is a payment to the person which they can use flexibly to meet their needs.
26. 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.

National Institute for Health and Care Excellence (NICE) Guidelines on Blood Transfusion (NG 24, November 2015)

27. NG 24 is the relevant guideline for doctors to consider where they have patients who need a red blood cell transfusion. It says: ‘when using a restrictive red blood cell transfusion threshold, consider a threshold of 70 g/litre and a haemoglobin concentration target of 70-90g/litre after transfusion.’

The Care Quality Commission’s regulations and standards

28. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care in care homes. The regulations relevant for this complaint are:
• Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences;
• Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment;
• Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.

What happened

Background

29. Mrs B was in her nineties and had kidney disease, vascular dementia, heart failure and Parkinson’s disease. She lived in her own home before the incidents of this complaint. She had hearing loss and her speech could be hard to understand as she had soft palate palsy. Before going into hospital, Mrs B had a council funded care package of four daily visits from two carers. She was cared for in bed and needed assistance with eating and drinking, personal care and continence.
30. Mrs B went into one of the Trust’s hospitals in February 2016 after carers found her in a confused state. Doctors diagnosed a chest infection which they treated with antibiotics.

March 2016

31. Ward staff completed a checklist for continuing healthcare (CHC) funding. Mrs B met the criteria for a full Decision Support Tool (DST) assessment which a continuing healthcare assessor from the CCG completed. Mrs B was not eligible for continuing healthcare funding and the CCG wrote to Mrs A to tell her. Ms A was present at the assessment and agreed with the scores.
32. The Council allocated Mrs B a social worker. Mrs A asked for a further continuing healthcare assessment. The social worker tried to organise a date for a social care assessment, but Mrs A said she wanted to wait for the outcome of a second continuing healthcare assessment. A further continuing healthcare checklist was completed and Mrs B again met the criteria for a full DST assessment.

April to June 2016

33. Mrs B’s doctors considered she was medically fit for discharge from hospital in April 2016.
34. A continuing healthcare assessor completed a DST assessment at the end of April. Mrs A told the social worker she was not willing to take part in a social care assessment until the CCG formally told her its decision on continuing healthcare funding.
35. There was a multi-disciplinary panel meeting to discuss the DST and decide on Mrs B’s eligibility for continuing healthcare funding at the end of April. The CCG wrote to Mrs A at the beginning of May to say her mother was not eligible.
36. At the end of May, Mrs A said her mother wanted 24-hour nursing care at home. There was a further DST assessment.
37. In June, Mrs B’s social worker completed a mental capacity assessment of Mrs B’s capacity to make decisions about her future care. The outcome was she had capacity. The social worker noted Mrs B told her ‘it’s all about money and she agrees she needs 24-hour care.’
38. In the middle of June, there was a meeting with ward staff, Mrs A and Mrs B’s consultant. Mrs A said the family wanted 24-hour carers at home. Mrs B’s social worker referred her to an advocate. An email from Mrs B after the meeting said she wanted her daughter present at discussions about her future care.
39. An advocate met with Mrs B. The advocate noted Mrs B became upset when discussing her finances. Mrs B told the advocate she wanted to make decisions about her care with her family. There was therefore no further input from the advocate.
40. Hospital staff made a safeguarding alert to the Council alleging Mrs B’s family were blocking discharge plans. There was a case conference at the end of June with ward staff and social workers and Mrs A. The outcome was there was no evidence of abuse and the issue was about funding and care on discharge. The Council therefore took no further action under safeguarding procedures. During the safeguarding meeting, there was a discussion about Mrs B’s care after discharge from hospital. The chair asked the family what care they felt Mrs B needed to go home and they said five hours in the day and nine hours at night. At the Council’s hourly rate, this would cost £1350 per week. The chair said this figure could go to the funding panel for a decision. The chair also said a tailored package of care could be devised but councils could have regard to their overall budget. The family felt Mrs B’s care should be health-funded. The chair said if the CCG had said it was not within their remit, then the Council was responsible.
41. At the end of June, the CCG held a DST first line appeal meeting (this was an informal review of the DST completed in April) which included the CCG’s continuing healthcare manager and the family. The decision was not changed.

July to September 2016

42. Mrs B’s case was allocated to a different social worker in July. The social worker completed a social care assessment. The assessment noted:
• Mrs B said she would like to return home with support. She had mental capacity to make decisions about her future care. Her daughter was asking for four calls a day and three at night. Mrs B had said she knew her assessed needs would be better met in a care home;
• If Mrs B went home with for calls a day and three at night, she would be alone between calls, may have to lie in soiled pads; would be unable to feed or have a drink between visits and may experience isolation. She would not be able to change position independently or give herself pain relief and she could not use a pendant alarm to call for help.
• Returning home may not be in Mrs B’s best interests and a nursing home may be a more suitable option as she would not have to wait for care between visits;
• Mrs B had an indicative personal budget of £326;
• Mrs A was concerned about Mrs B moving to a nursing home as she felt it would be confusing for her to be in a temporary placement and then possibly have to move again. She wanted Mrs B to stay in hospital until funding was agreed for a home care package.
43. The Council’s funding panel discussed Mrs B’s case and recommended a temporary placement in a nursing home with a review after six weeks to see if Mrs B could return home. The panel approved eight weeks of funding for the Nursing Home at £750 a week. The Nursing Home offered Mrs B a place at the end of July. Records indicate it had a vacancy and this was kept open for Mrs B.
44. The Council sought independent legal advice. The legal view was that the assessment and decision not to fund home care were lawful on the grounds of (1) the risk to Mrs B’s health and well-being and (2) the significant cost difference. This was as long as Mrs B’s wishes and feeling were also considered.
45. Mrs A emailed the Council at the end of August saying she was aware the funding panel had recommended an eight-week temporary placement in a nursing home. She said this went against what had been agreed in the safeguarding meeting (see paragraph 40). She said any attempt to move Mrs B would result in legal proceedings and would be an assault.
46. There was an email exchange between Mrs A and the social worker at the end of August. Mrs A asked the social worker to arrange a fresh continuing healthcare assessment as Mrs B’s skin integrity had declined. The social worker said ward staff would complete the checklist.
47. Mrs A emailed the social worker to ask if her mother could be discharged home with carers four times a day and three times at night. Mrs A emailed again with a series of questions for the social worker. The social worker and Mrs A’s solicitor spoke and the social worker told him about the funding panel’s decision. The solicitor said he had not received a copy of Mrs B’s social care assessment. He asked for a meeting of all those involved with Mrs B’s care. In mid-September, the social worker gave copies of the social care assessment to Mrs A and her solicitor. The social worker invited Mrs A to a discharge planning meeting with the CCG and Trust. Mrs A declined as she was only given three days’ notice and she wanted her own legal representation. She asked the social worker if she had started a fresh continuing healthcare assessment or started the dispute resolution procedure with the CCG. She also asked the social worker to implement the care package discussed at the safeguarding meeting.
48. The social worker replied to the emails from Mrs A in the previous paragraph, saying:
• The ward advised Mrs B’s condition had not changed;
• The social care assessment had been agreed by the panel and the decision was to fund a temporary nursing placement and she had been told that already;
• She would contact the family to go through the social care assessment, which was accurate and up to date;
• The Council was not challenging the CCG’s decision on continuing healthcare funding because it was within the range of reasonable responses. The family could appeal if they wanted to;
• Mrs B’s assessed needs included some nursing needs but fell below NHS funding levels;
• Mrs B’s wishes and feeling were one factor and the Council could take into account its finances;
• Mrs B was well able to reflect that whilst she wished to live at home, her needs may be better met in a nursing home. Her wishes were recorded together with her ability to reflect on her safety and this formed part of the assessment that she had mental capacity to make decisions about her care.
49. There was a meeting of health and council staff and the family and their solicitor in September. The family asked for an eight-week trial at home with the plan they put forward at the safeguarding meeting at the end of June. The family’s solicitor suggested care did not need to be round the clock and could be partly self-funded and partly council-funded. He said Mrs B should be able to choose. Council officers raised concerns about Mrs B’s safety between calls and said the Council would not fund a proposal that did not meet Mrs B’s eligible needs. The Council’s view was the nursing home placement was necessary because Mrs B needed a nurse to be available to supervise Mrs B’s care.

October 2016

50. The Council obtained further legal advice. The view was that it may be lawful for a council to give a direct payment which the family could use to part fund Mrs B’s care, where the overall proposed package (including any care the family organised) met eligible needs.
51. In October, the Trust wrote to Mrs A to say she needed to leave hospital within two weeks or it would take court proceedings to evict her. It explained the Council had arranged a placement in the Nursing Home. Email correspondence from the Trust’s solicitor to the family’s solicitor said:
• Mrs B had been medically fit for discharge since April;
• The family were entitled to challenge the Council’s social care assessment and care plan but Mrs B had no right to remain in hospital meantime. The Council was clear it could meet Mrs B’s needs now;
• The purpose of a DST assessment was to determine who was responsible for funding care. The fact that this had not been completed for five months did not make the discharge an unsafe one. The family needed to take up funding disputes with the CCG.
52. Mrs A’s solicitor asked the Trust not to threaten eviction proceedings. The solicitor said Mrs B wanted to return home and could not be compelled to go to a nursing home. The solicitor asked the Trust to do a further checklist for continuing healthcare.
53. The Trust’s solicitor wrote to Mrs A’s solicitor again saying Mrs A remained in hospital despite the letter asking her to leave. The solicitor said the Trust would start court proceedings if she did not leave within seven days and if she wished to go home instead of into nursing care that was a matter for her.
54. The Trust did not take legal action to evict Mrs B from hospital and she remained a patient on an acute ward. She continued to be medically fit for discharge.
55. The Council’s and Mrs A’s solicitors spoke informally about Mrs B’s post-discharge care. Mrs A’s solicitor proposed an eight-week trial of home care. The trial at home was not pursued because of concerns by council officers about unacceptable risks to Mrs B because the visits would not meet all her care needs.
56. The Council’s solicitor said in emails to Mrs A’s solicitor:
• The social worker needed to see Mrs B and the family had cancelled two meetings. The meeting in September (see paragraph 49) was too big for Mrs B to be able to express her views;
• Officers had assessed Mrs B’s needs and she required 24-hour nursing care including repositioning every four hours, continence care, feeding and medication. Mrs B’s wishes were not the overriding consideration in law. The Nursing Home’s fee was above the usual rate the Council expected to pay for care in a nursing home. A social care assessment had been completed and there was a plan of care proposed;
• Two night carers cost £150 a night. This would be on top of day care costs. The total cost of a home care package would be 70% more than the Nursing Home.
57. Mrs A’s solicitor said in emails:
• He was arranging for an independent assessment of the impact on Mrs B’s mental health of ‘being forced into a nursing home’. He said the Council should have done this;
• Mrs B had asked the Council to meet some of her needs. It was open to the Council to meet needs less than identified.
58. Internal council documents showed officers worked out the cost for the Nursing Home was £39,000 a year; and for four calls of one hour a day and night sitting (two carers) was £94,000.
59. Council officers met to discuss Mrs B’s case in the middle of October. I have summarised the discussion below:
• The package put forward by the family in the safeguarding meeting (see paragraph 40) would not meet all Mrs B’s needs;
• The Council could deliver continence and positioning with 45 minute visits in the day and two night sitters. The total cost for these two needs would be more than twice the cost of the Nursing Home. This would leave the family to say how they would meet feeding and drinking needs. The family’s solicitor had not replied to the question of the family’s input into Mrs B’s care;
• The Council would pay for the bed at the Nursing Home during any possession proceedings taken by the Trust;
• The social care assessment was up to date. The social worker would try to arrange a welfare visit.
60. The Director of Social Care said in an email to Mrs A that the Council had offered Mrs B an eight-week placement to facilitate her discharge and it was up to the hospital to take whatever steps it considered lawful regarding her hospital bed and the Council was not involved in this process. If Mrs B wanted to go home, the Council would consider it had made a lawful and reasonable offer and its duty would be discharged. The Council was keeping a bed at the Nursing Home open for Mrs B.

January to March 2017

61. In January 2017, the CCG convened a local review panel. Mrs A and her solicitor attended. This was an appeal against the DST of April 2016. The minutes noted:
• There had been other DST assessments, but the meeting was to discuss the one completed at the end of April;
• The family disputed 10 of the domains;
• The panel heard the family’s and the CHC manager’s evidence on each of the domains.
62. The outcome of the appeal was to uphold the CCG’s decision. The letter explained Mrs A had a right of appeal to NHS England. The CCG said it would arrange a further DST assessment as it recognised the situation had changed and Mrs B had been in hospital a long time.
63. Ward staff completed a further checklist in mid-February. This triggered the need for a further DST assessment.
64. Mrs A arranged for an independent assessment of Mrs B’s mental capacity to make decisions about her care. The outcome was she had capacity. The Trust also tried to arrange for its own assessment of Mrs B’s mental capacity. This did not go ahead as Mrs A told staff that Mrs B objected to further assessments. Mrs A’s solicitor said in an email to the Council that a further mental capacity assessment would serve no purpose and he had been instructed that it would be without Mrs B’s consent and may result in proceedings to get an injunction.
65. Mrs A complained to the Council about the social worker’s lack of communication in February. She also said in an email to the social worker in March that the social worker had not been in contact with her since October. The email had 10 questions for the social worker to answer, some of which were about interpretation of points of law and whether the social worker felt Mrs B’s needs were similar to those in a reported legal case about continuing healthcare.
66. An updated social care assessment took place in March 2017. This noted Mrs B remained medically fit for discharge, had healed pressure sores, had no seizures for a long time and had blood transfusions for anaemia. She wanted to return home. The assessment noted Mrs B may feel grief if she went into a nursing home because of a loss of independence. She would need staff to monitor this. The assessment noted recent assessments of Mrs B’s mental health/capacity had not taken place as Mrs B’s family said she did not want to take part.
67. A manager from the Council replied to an email from Mrs A about funding saying:
• After the first negative decision from the CCG, the Council did not dispute the CCG’s decision and so it had not challenged the decision;
• The social care assessment noted Mrs B had nursing needs which could be met through a nursing home placement;
• Officers would keep the situation under review, but at present the assessments had not been challenged and so stood.
68. Mrs A contacted the Care Quality Commission (CQC) saying Mrs B had lost weight in hospital and was under stress and being threatened with eviction. Internal council records indicate the safeguarding lead from the Trust agreed to carry out an enquiry and update the Council with the outcome. The Council said it would then arrange a safeguarding meeting. There is no record of the Trust’s enquiry or of a safeguarding meeting with the family.

April to June 2017

69. At the beginning of April, the Trust wrote to Mrs B to say she had 14 days to leave hospital and could not remain while the dispute about funding was resolved. The letter advised Mrs B that the Council had arranged a placement at the Nursing Home. Mrs A and her solicitor replied saying the discharge was premature because an assessment for continuing healthcare had to take place first and this had been postponed because the hospital had not given the family all the records they had asked for.
70. Mrs A complained to us in April. We decided not to investigate and asked her to complain to the Council. Mrs A also complained to the Council about a lack of contact following the safeguarding concerns she had raised through the CQC in March (see paragraph 68). She asked for a new social worker. The Council replied saying her complaint was on hold as it was part of a safeguarding enquiry and a response would be sent once the safeguarding enquiry was finished.
71. The Trust and Council’s Chief Executives met with Mrs A at the end of April. An email to Mrs A after the meeting noted:
• The Council’s position was Mrs B’s needs were best met in a nursing home;
• The Council accepted Mrs B wanted to return home and as an alternative offer, the Council would make a direct payment for 30 hours a week of day care through a direct payment plus two night calls. There were ongoing concerns this would not meet all Mrs B’s health and social care needs;
• The CCG had offered to pay for night sitting but had now withdrawn this offer;
• The Trust would provide nursing support twice a day;
• The family were to consider what support, if any, they would supplement the package with.
72. Mrs A asked the Council to put the proposal described in the previous paragraph into a care and support plan, including the nursing visits, and to include the agencies willing to provide day and night calls. This was so the family could work out the costs of additional support. She asked the Council to set out Mrs B’s contribution towards her care costs.
73. The Council responded to Mrs A’s complaint about the social worker in May 2017. It said the social worker had replied to all queries promptly. It noted there was a gap of about 20 days in relation to one email, but the social worker was in contact with Mrs A’s solicitor during that period.
74. In May 2017, a social work manager emailed Mrs A with a proposed care plan. The Council offered a direct payment or council-commissioned care. The proposed care was:
• 30 hours a week of day care to be used flexibly at £13.84 an hour (either as a direct payment or by the Council commissioning a care agency;
• Two calls of 15 minutes each call per night (two care staff) at £40 an hour (the Council’s in-house service would provide these)
• Total hours a week were 37.

Mrs B’s contribution towards the cost would be £43 a week. The social work manager told Mrs A to ask the Trust about community health services for Mrs B

75. The CCG completed a further DST assessment and convened a panel meeting in May 2017.
76. A social work manager from the Council emailed Mrs A at the start of June clarifying the Council’s position in response to points she raised. The manager confirmed:
• The social workers at the multi-disciplinary meeting considered Mrs B’s needs were primarily health needs but that did not mean the other agencies (the Trust and CCG) had to agree;
• The Council still believed care in a nursing home was the best option for Mrs B. It never said it would force her into a nursing home and had now set out a plan to meet her needs in her own home. This plan was against the professionals’ recommendation;
• Up until the most recent continuing healthcare multi-disciplinary meeting in May 2017, the Council had no dispute about eligibility (it considered Mrs B was not eligible for NHS funding). At the most recent meeting, the Council made its recommendation that Mrs B met the criteria for NHS continuing healthcare funding and the decision was awaited;
• Pending the CCG’s decision, there was a package of care to enable Mrs B to return home. The sole issue was whether that package was health or council funded.
77. The Council’s solicitor wrote to Mrs A saying:
• The Council assessed Mrs B as needing 24-hour nursing care. This was not the same as saying she was eligible for NHS continuing healthcare. Mrs B had eligible health and social care needs and the fact that the Council had recommended to the CCG that her needs were primarily health ones, did not mean the other agencies agreed or that the Council was correct;
• The Council would not and could not state that Mrs B’s needs were beyond the legal limit. It had set out its recommendation about this to the CCG;
• The Council never said it would move Mrs B against her will. It had now set out how it would jointly meet her needs in her own home, which was contrary to its recommendations;
• The only issue was which body would pay. A decision on continuing healthcare was awaited;
• If Mrs B wanted to dispute her care plan, she needed to challenge it in court.
78. At the end of June, the CCG decided Mrs B was not eligible for continuing healthcare. The Council emailed the CCG to say it would be challenging the decision using the dispute resolution procedure. Mrs A also emailed to say she would be appealing the CCG’s decision.

July to August 2017

79. At the beginning of July, Mrs B’s consultant considered her condition had deteriorated and she likely had less than 12 weeks to live. Mrs B was no longer medically fit for discharge.
80. The following day, the CCG approved fast track CHC funding. Professionals, including staff from the Trust, Council and CCG, met to discuss Mrs B’s care needs and available provision in the community. The view was Mrs B needed a placement in a hospice to ensure her safety. There was no decision made at this meeting about a care package; it was just a discussion.
81. Mrs A complained to the CCG saying there had been flaws in the way the multi-disciplinary team panel considered Mrs B’s application for continuing healthcare funding (the May 2017 application). The CCG’s complaint response said:
• There was no consensus by the multi-disciplinary team and so the panel made two recommendations. There was no change in membership and all those present were involved with Mrs B’s care. All felt able to contribute to the discussion. One member had to leave early and so the lead assessor met with her the next day to discuss the two domains she had not discussed;
• One member of council staff was present to support the social worker. She did not contribute and left when the panel was deciding on its recommendations.
82. Mrs A also complained to the CCG in July 2017 about the package of care it offered Mrs B with fast-track funding. She asked for a review. The CCG told her a review was not the correct way of dealing with the issue (as the review procedure was to resolve eligibility disputes and Mrs B was eligible). The CCG treated Mrs A’s contact as a formal complaint and replied in September saying:
• Mrs B was eligible for fast-track funding and the paperwork was completed the same day her consultant gave a prognosis of less than 12 weeks;
• Paragraph 169 of the National Framework said CCGs should commission services using individual models which maximise personalisation and individual control and reflect the person’s preference as far as possible. The CCGs view was this did not mean the person had a free choice of service, but that the way of delivering care should be a personal health budget;
• Paragraph 107 said end of life care should take full account of the person’s preferences. It did not say the person’s preferences must be implemented in full. The CCG had taken account of Mrs B’s preference to return home but decided it was not possible to commission a package of care safely within the available resources as it could not be done with a 20% enhancement over the cost of a care home placement permitted by the CCG’s policy;
• Commissioners sought to fulfil their duty to commission clinically safe and sustainable care for their patient population and also to balance the books;
• In considering whether an individual’s preference was viable the CCG took into account quality assurance. Risk, value for money. Policy recognised home care was more expensive than residential and so there was a 20% enhancement.
83. The CCG explained to us in response to enquiries that its offer of fast track care was for four visits a day from the palliative care team, community nursing and a night-sitting service. There is no written record of the CCG offering the family this package or of offering them a direct payment through a personal health budget.
84. Two weeks later, the consultant noted an improvement in Mrs B. She had just had a feeding tube inserted in her stomach and was now receiving food and fluid through this. At the beginning of August, clinicians met with Mrs A to discuss Mrs B’s prognosis. They said Mrs B no longer met the criteria for fast track continuing healthcare because her nutritional needs were being met by the feeding tube.
85. The Trust discharged Mrs B from hospital on 19 August. Nursing records, emails and statements for this investigation show senior staff spoke to Mrs A and her sister in the days beforehand to make them aware of the Trust intended to move Mrs B to the Nursing Home. Mrs A was on holiday, objected strongly to the plan and said she was going to come back to stop it from going ahead, although she did not attend the hospital. Mrs A’s sister, who also visited Mrs B regularly, including the day before discharge, was aware of the proposed plan and I have seen no record that Mrs A’s sister objected to it.
86. The records also show senior staff spoke to Mrs B on the days before discharging her. She said she wanted to go home on one occasion. She also said she wanted to leave hospital. On the day Mrs B was transferred to the Nursing Home, her consultant carried out an assessment of her mental capacity to consent to the transfer. She had capacity.
87. The notes made by the two clinical support workers who accompanied Mrs B on the day of the move, said she was happy, knew where she was going and raised no objections during the transfer. She is noted to have liked her room at the Nursing Home and to have been falling asleep when the support workers left.
88. There were a number of emails from Mrs A objecting to the discharge. I have summarised the Trust’s responses to those emails below:
• Mrs B’s first choice was clearly to go home but she agreed to go to the Nursing Home. There was no force involved or any restraint and she was not upset;
• Mrs B had mental capacity so any advance direction she made was not applicable;
• The CCG agreed to fund the Nursing Home for the first two weeks and she did not need to stay in hospital while funding disputes were resolved;
• The Trust did not agree there was an assault or any breaches of hospital discharge regulations.
89. Mrs A made a safeguarding alert about Mrs B’s transfer to the Nursing Home, alleging there had been coercion, fraud, an assault and Mrs B had no independent advice. The social worker reported the matter to the police who took no further action. The Council’s safeguarding manager decided there was no evidence of abuse and so did not proceed with a safeguarding enquiry. She told Mrs A this and advised she could make a complaint to the Trust about the discharge process.

August to December 2017: The Nursing Home and GP’s records

90. The Nursing Home drew up care plans for Mrs B and reviewed them regularly. The plans relevant to the complaint are summarised below:
• Maintaining a safe environment: Mrs B had bed rails and bumpers. She had hourly checks, could not use a call bell and staff used a hoist or slide sheets to move her.
• Food and fluid: She had food and fluid through a feeding tube. Her swallowing was poor. There was a high risk of aspiration pneumonia and so she had to be sitting up and supported with pillows when tube feeding and eating and drinking normally. Feeding was to stop when she was having personal care and if she vomited. She was to be weighed weekly due to having a low body mass index (BMI) of 16 on admission. (The BMI range for a health body weight is 18.5 to 25). Staff were to keep food and fluid charts. The care plan also described food and fluids which Mrs B had by mouth as well as tube feeds. At first, she had a soft mashable diet and stage 1 thickened fluids. The review in September updated the care plan to stage 2 fluids. After a review by the dietician, in October, fluids were stage 3 and Mrs B had a pureed diet. Staff were to use a teaspoon for feeding and observe for residue and vomiting.. In November, oral food and fluid stopped and all Mrs B’s food and liquid was given through the feeding tube.
• Feeding tube plan: There was a separate plan setting out food, liquid, flow and duration plus water flushes. This was updated each time the dietician visited Mrs B. Medication was given through the feeding tube.
• Weight: Mrs B weighed 44.8 kg on admission to the Nursing Home in August and 48.7 kg on 23 November. The later weight placed her at a healthy BMI (19). Staff weighed her weekly.
• Communication: Mrs B could communicate but, as she had soft palate palsy, it could be hard to understand her at times. Staff needed to give her time to communicate. They should check her hearing aids and offer her clean glasses. In November 2017, she had deteriorated and was much quieter since returning from hospital;
• Breathing: due to heart failure, anaemia and a history of aspiration pneumonia, Mrs B could be short of breath. She was to sit as upright as possible and sleep at an angle. Staff monitored her breathing rate and were to seek urgent medical help if her oxygen saturations fell. She was to be seen by a GP on the same day if there were any symptoms of a chest infection. She was on oxygen and her saturations were to be 88 to 92%.
• Anaemia: The GP did regular blood tests and the nurse was to ensure these took place and diarised reminder dates. If Mrs B’s anaemia became symptomatic (the care plan described symptoms to watch out for) then staff were to consult the GP. She had a blood transfusion in September and the GP retested her iron at the end of October and prescribed a six- week course of iron tablets;
• Personal care: Mrs B needed two staff to help with personal care, including soaking her dentures, brushing her hair, bed bath, check skin. She was doubly incontinent and used pads. Her hands were contracted and she could not carry out tasks with them. Staff were to ensure they were washed and dried;
• Skin: Mrs B had a profiling bed and air mattress to protect her fragile skin. She had two hourly position changes, cream on her sacrum and staff were to check pressure areas. She bruised easily. The feeding tube site was to be cleaned and reported to nurses if it was soiled or red;
• Continence: Mrs B had hourly continence checks and laxatives for constipation (administered if she had not opened her bowels in 3 days);
91. Nurses at the Nursing Home kept detailed charts including records of:
• Daily oxygen saturations
• Bowel movements
• Pad checks and pad changes (several times a day)
• Feeding tube instructions and feeds and fluids given by tube
• Oral fluid charts from 12 October with running totals varying up to 750 ml a day and oral food charts also starting 12 October
• Positioning charts (noting when staff repositioned Mrs B and checked her pad) These checks generally took place every two hours (apart from when Mrs B was asleep, as she had said she did not want to be disturbed)
• Mouth care, generally given hourly after Mrs B became nil by mouth
92. The Nursing Home also kept daily running records. These showed regular liaison between staff and the family and between staff and healthcare professionals including regular visits by the GP and GP practice nurse including six visits by the dietician, a visit by the optician, respiratory nurse, and tissue viability nurse and three visits by the speech and language therapist.
93. The GP, out of hours GP or nurse practitioner from the surgery visited Mrs B or contacted nursing home staff on:
• 25 August: there was no chest infection
• 26 August: there were no concerns
• 28 August: her chest was clear but the GP was concerned about her blood pressure. Staff were to take this four times. This was done and there were no concerns
• 29 August (phone call): Mrs B appeared to have a cold but was not chesty.
94. A carer reported Mrs B was chesty on 2 September. A nurse took her oxygen saturations and they were 78-84%. She had a fast heart rate. Staff called an ambulance and Mrs B went into hospital. Her other daughter went with her. She returned to the Nursing Home on 8 September.
95. On 15 September, Mrs B vomited at 20:00. Mrs A asked staff to arrange an urgent GP visit. Staff stopped her tube feed and noted it may be an overload of food or fluid. Mrs B was alert and her vital signs (temperature and pulse) were taken. The notes indicate a nurse called 111 for advice at 02:00 on 16 September. The out of hours’ service arranged a visit within six hours and the GP came at 06:00. Mrs B’s oxygen saturations were at 40%. She was taken to hospital and treated for possible aspiration pneumonia.
96. On 27 September, Mrs B complained of nausea. Her tube feed was stopped and flushed. Staff spoke to her GP who prescribed anti-nausea medication.
97. On 6 October, Mrs A was visiting when Mrs B was unwell. She had vomited twice. A nurse gave her anti-sickness medicine and stopped the feed and flushed the tube. Her vital signs were stable with no temperature. Mrs A is noted to have agreed Mrs B did not need to see a doctor. Later Mrs B was noted to be asleep but easily rousable.
98. On 10 October, Mrs A complained to the Nursing Home about Mrs B’s care on 15 September. She said there was a failure to monitor her mother and a reluctance by staff to act upon her request to call an emergency doctor. The Nursing Home responded on 24 October saying:
• Mrs B had been seen and assisted regularly for repositioning and feeding in the hours before Mrs A visited at 19:20
• Mrs B vomited at 20:00, the nurse checked her oxygen levels which were at 90%. (88 to 92% was acceptable for Mrs B). The nurse stopped the tube feed.
• She was checked and care given eight times between 20:00 and 02:00. Her oxygen level was 88% at 24:00
• The GP was called at 02:00 at the family’s request. She visited at 06:00 and sent Mrs B to hospital as her oxygen levels were 84%
• The care was correct: Mrs B had a history of aspiration pneumonia and due to her condition there was always a risk of vomiting. She was seen regularly on the evening and there was nothing that could have been done to prevent the incident. Staff followed the correct procedure in line with the care plan, by stopping the feed and monitoring her
• Staff requested anti-nausea drugs on 27 September as Mrs B had complained of nausea and the GP prescribed these.
99. Blood tests arranged by Mrs B’s GP, showed her haemoglobin level was 74 g/litre on 20 October.
100. The GP reviewed Mrs B on 24 October and noted she had no systemic symptoms of anaemia. (This means her anaemia was not causing her any problems). The GP prescribed iron tablets and the plan was to repeat the blood tests.
101. On 9 November, staff arranged for the nurse practitioner to see Mrs B as she had a high temperature. She prescribed antibiotics for a possible urine infection. Carers were to take a pad for testing. The following day Mrs B’s temperature was normal. Her pad was tested the following day (this could not be done sooner as other pads were soiled) and nothing abnormal was detected.
102. On 12 November, Mrs B was observed hourly and was short of breath. The following day, she vomited when drinking and was given anti-sickness medicine. The nurse practitioner visited and took bloods. Mrs B was sick again later that day.
103. On 13 November, Mrs B’s haemoglobin level was 62 g/litre. She was noted to be breathless and the GP arranged for Mrs B to go into hospital for an urgent blood transfusion.
104. Mrs A complained to the GP about Mrs B’s treatment for anaemia. She said the GP did not monitor Mrs B’s iron levels appropriately and should have referred her to hospital for a transfusion in October, rather than prescribing iron tablets. The GP responded saying he prescribed iron tablets in October to stop Mrs B’s anaemia worsening. The plan was to review Mrs B’s haemoglobin levels after two weeks. Further tests indicated they had dropped and so he arranged for Mrs B to have a blood transfusion.
105. Mrs A complained to the Nursing Home raising concerns about Mrs B’s care on 20 October. The Nursing Home’s manager replied on 8 November saying:
• The oxygen tube was found on Mrs B’s bed. Carers had repositioned Mrs B at 12.40 and the tube was in place when they left the room. She had raised this concern with staff
• Nurses had visited Mrs B in the morning. She received 500 ml of fluid through the feeding tube and had 170 ml fluid orally
• She had to have a fasted blood test and so did not have breakfast; she asked for eggs at 10:15 and staff explained why she could not eat. Bloods were taken at 11:15
• Staff had been asked to document visual checks as well as repositioning.
106. Mrs B returned to the Nursing Home on 24 November (after the transfusion). The hospital dietician had reviewed her eating and drinking and stopped food and fluid by mouth.
107. Mrs B’s condition declined and her care plans were reviewed. She was felt to be very near to the end of her life. Staff at the Nursing Home spoke to the palliative care team who intended to visit the following week but had advised on the doses of end of life medicines that could be given meantime if needed.
108. Mrs B was increasingly drowsy and non-responsive and she died on the evening of 1 December at the Nursing Home.

August to November 2017: The Trust, CCG and Council’s records

109. The CCG contacted the Council in August saying now Mrs B was ‘no longer a fast-track patient’ it intended to review the DST of May 2017 to see if her needs had changed.
110. Mrs A emailed the CCG to say she was appealing the decision to remove Mrs B’s fast track funding. At the end of August, a senior manager from the CCG clarified the position about Mrs B’s fast-track funding. He said funding was still in place because it could not be ended until there had been a full review and another DST assessment had been completed.:
111. Mrs A sent several emails to the social worker in September asking for updates about the continuing healthcare dispute resolution process between the Council and CCG.
112. In September, the CCG invited Mrs A to ‘a new assessment’ at the Nursing Home. The CCG advised Mrs A of the professionals who were going to make up the multi-disciplinary team. These included a nurse assessor from another CCG. The meeting did not go ahead because Mrs B was too unwell to attend.
113. A senior manager from the Council also emailed Mrs A to say she had requested ‘an appeal date’ from the CCG.
114. The Council’s records indicate the social worker updated the social care assessment and sent a copy to Mrs A in September. The updated assessment described Mrs B as being upset sometimes if she was repositioned. She remained eligible for social care funding. The social worker noted Mrs B’s needs had significantly changed, her assessed needs were being met and she appeared settled.
115. Mrs A sent a first email to the social worker in the first week in October with comments on the social care assessment. She objected to any suggestion Mrs B was settled in the Nursing Home. Mrs A said there had been a delay by nursing staff at the Nursing Home in getting medical help for Mrs B. She said Mrs B had vomited and the nurse on duty had questioned the need for Mrs B to see a doctor. Mrs A sent a further email to the social worker and the Council’s safeguarding team at the end of October alleging Mrs B had been left unattended for four or more hours, had no access to fluids and had vomited when she was visiting resulting in an emergency hospital attendance.
116. The social worker replied to Mrs A’s first email (see the previous paragraph) at the end of October. The social worker said:
• She had visited Mrs B and there was no evidence she was unhappy at the Nursing Home and so she would not remove the word ‘settled’ from the assessment;
• The Council had no involvement on the day of the transfer. The safeguarding manager advised there were no safeguarding issues and Mrs A should complain if she wanted to take the matter further;
• Her view was Mrs B’s needs were better met and could only be met in a nursing home. She needed the support of a registered nurse and regular checks. The Nursing Home was meeting her needs.
117. A case note indicated a DST multi-disciplinary review meeting which was scheduled to take place on 2 November was postponed because Mrs A’s husband objected to the experience and training of members of the team carrying out the review.
118. At the beginning of November, Mrs A chased the safeguarding manager about her second email (see paragraph 115). The safeguarding manager advised she would complete a safeguarding enquiry. The safeguarding manager visited the Nursing Home to look at some of Mrs B’s care plans and other care records. She reported her findings to Mrs A. The safeguarding manager said:
• She looked at the care schedule for random days showing repositioning, urine output, creams applied;
• Mrs B said she wanted to sleep and so when she was asleep, only essential checks were made;
• The manager would explain the reason for a fasted blood test (which Mrs A had queried).
119. Mrs A replied saying the safeguarding manager should have contacted her for more details about her concerns with the Nursing Home. Mrs A set out more detailed concerns about her mother’s care on specific dates in August and October including the vomiting episode described earlier, position changes, fluid intake and the oxygen tube incident.
120. The safeguarding manager spoke to the manager at the Nursing Home and noted the manager said Mrs B was often asleep. She had mental capacity and had asked if staff could go in less often so as not to disturb her when she was asleep. Staff had been looking in on her but did not always document this. From now on, they would write all checks down (including checks when she was asleep)
121. The Safeguarding manager replied to Mrs A saying:
• She looked at random dates in Mrs B’s records and received satisfactory responses about the incidents Mrs A had raised. She supported the manager’s decision to record all contact with Mrs B (including checks when Mrs B was asleep and she was not disturbed);
• She did not review care plans because the purpose of her visit was to address Mrs A’s concerns about her mother not getting regular checks;
• She was not going to look at the other dates Mrs A had raised because the Nursing Home intended to record all checks, even those where they did not do anything for Mrs B. She agreed with Mrs A that staff needed to record all checks included those where Mrs B was sleeping.
122. Internal records indicate Mrs B’s social worker and a manager intended to visit Mrs B in November to ascertain her feelings about her care. The visit did not take place because Mrs B was in hospital.
123. Mrs A also emailed council officers several times asking about whether they had started the continuing health care dispute resolution process. Officers replied saying they had not confirmed a date. It is unclear whether officers were referring to the dispute between the Council and CCG regarding the decision of May 2017 that Mrs B was not eligible or to Mrs A’s request for a review of the DST of May 2017. Emails between council and CCG staff at the start of December about a ‘DST review’ indicate the CCG manager had not authorised a date.

Was there fault?

Complaint (a): The Council and CCG failed to provide an appropriate and safe home care package for Mrs B from April 2016

(1): The Council’s actions

124. Mrs B was medically fit to leave hospital in April 2016. Hers was a complex case requiring discharge planning to start early to comply with national discharge planning guidance (Ready to Go). The records indicate the Trust identified Mrs B was likely to need care after discharge and ward staff completed a continuing healthcare checklist in March 2016. This was a prompt and appropriate action and was in line with Ready to Go and the National Framework for Continuing Healthcare. The Council also allocated a social worker to complete a social care assessment in March. This action was also prompt and appropriate and in line with Ready to Go.
125. The Council carried out a social care assessment for Mrs B in July 2016 and made a decision on funding in August. This was three months after Mrs B was fit for discharge and would in other cases be fault because of the expectation that social care assessments are completed within a reasonable timeframe. I do not consider it was fault in this case. The records indicate Mrs A wanted to wait for the CCG’s decision on continuing healthcare eligibility before proceeding with a social care assessment. I consider council officers were trying to work with Mrs A to enable her mother’s discharge and so the response was appropriate.
126. Mrs B and her family repeatedly asked for a home care package. Their preference was round the clock home care. The records show they later told officers they would accept a lesser home care package of day and night time visits. The Council refused to offer such a package as officers felt it would be unsafe and would not meet Mrs B’s eligible needs. Instead, the Council offered a Mrs B a placement in a nursing home which she refused. There were internal discussions about the legality of offering Mrs B a care package which did not meet all her eligible needs. The family’s solicitor considered this to be lawful and the Council’s legal opinion was that it might or might not be. The Ombudsmen’s role is not to decide on legal grey areas and there has not been a reported case on this point. I am critical of the Council’s failure to offer a home care package in 2016 for reasons in the next paragraph, without needing to consider the legality of the Council offering a care package which did not meet all Mrs B’s needs.
127. In April 2017, the Council changed its mind about home care for Mrs B. Following a meeting between the family and senior officers, the Council offered Mrs B the home care package it had refused to offer her in 2016 because it was felt to be unsafe and not to meet all her eligible needs. There was no rationale given for the Council’s change of view and no evidence Mrs B’s condition had improved to the extent that the package previously refused would now meet all her eligible needs. Therefore, I find there was a delay by the Council of about nine months in offering a care package to facilitate Mrs B’s discharge. The Council should have offered the April/May 2017 care and support plan in July 2016 after completing the social care assessment. The delay of nine months was a failure to act in line with the requirement in the Care Act 2014 to seek reasonable steps to consult and agree on a care and support plan.

(2): The CCG’s actions

128. The CCG decided Mrs B was not eligible for CHC funding at the end of March 2016. Mrs A did not dispute this decision. There were further unsuccessful applications for CHC in April and May 2016 and in February 2017. Mrs A appealed against the April 2016 decision. The appeal was heard in January 2017 and failed. I note there was a high volume of emails between the parties and there were some practical difficulties in arranging appeal hearing dates that the family and their lawyer could attend that were not attributable to fault by the CCG. Even taking the family’s actions into account, I consider the CCG took too long to hear the appeal.
129. In July 2017, the funding position changed as Mrs B became eligible for fast-track CHC. Although her end-of-life prognosis changed two weeks later, senior officers at the CCG correctly told Mrs A that her mother’s eligibility for CHC remained in place until the CCG completed a review. The CCG told me it offered Mrs B a care package of four daily visits from the palliative care team, community nursing and a night sitting service. The evidence that this offer of homecare was communicated to Mrs B and her family in writing is not in any records I have seen (the only record is of a nursing home placement being offered). So I conclude the family were not formally offered this care package. The fact the Trust discharged her to the Nursing Home indicates the care package the CCG claims to have offered Mrs B was not actually set up else she could have been transferred from hospital to her home. And, there is no also evidence Mrs B was offered a personal health budget or a direct payment with which the family could have purchased community based services to meet Mrs B’s end of life care needs. This was not in line with law in force at the time of the complaint and was fault. As Mrs B remained eligible for fast track CHC until a review determined otherwise, she should have been offered a personal health budget and the choice to take this as a direct payment to arrange her own care. The failure to offer a personal health budget and direct payment was fault.

Complaint (b): The Council and CCG failed to communicate effectively with each other and with the family regarding Mrs B’s care needs assessments and care planning

130. Mrs A emailed staff frequently and her questions were sometimes detailed. Officers’ communication with Mrs A was appropriate and within an acceptable timeframe given the volume and detail of Mrs A’s queries and I do not uphold this complaint.
131. I note also that Mrs B wanted her family present at any face to face discussions about her future care. This was a reasonable request, but it hindered the ability of front-line staff to speak to Mrs B informally and seek her views directly.
132. The records suggest there was some liaison between relevant staff of the CCG and Council about funding and occasional formal meetings. Given the discharge took eighteen months to facilitate, I would have expected a regular and more co-ordinated approach with regular minuted meetings and action points to have taken place between officers at a more senior level and I do not consider the Council and CCG acted in line with the spirit of Ready to Go which emphasises the importance of effective co-ordination when planning care. Communication between the Council and CCG was not in line with expectations and this was fault.

Complaint (c): The Council failed to use the dispute resolution procedure with the CCG in or around July 2016 and in May 2017 despite considering that Mrs B had a primary health need

133. The Council only had to use the dispute resolution procedure if it considered any of the CCG’s decisions were incorrect. There is no evidence council officers considered Mrs B met the criteria for continuing healthcare funding in 2016 and so no dispute arose. I am satisfied officers explained this to Mrs A at the time, as evidenced in emails. There was no fault in not invoking dispute resolution in July 2016.
134. In May 2017, the Council disputed the CCG’s decision that Mrs B was not eligible for CHC. The records indicate it tried to invoke the dispute resolution procedure. But resolution did not take place and this was fault by both bodies which should have co-operated to resolve the dispute as required by the National Framework. I note the family expressed a negative view about members of the CCG’s panel. However, that should not have prevented the CCG and Council from resolving their dispute: that process was a separate one from the family’s appeal and did not need to have involved the family.

Complaint (d): The Trust wrongly made a safeguarding referral to the Council stating the family were not letting Mrs B go into a nursing home when in fact Mrs B did not want to go into a nursing home

135. The records indicate hospital staff made a safeguarding referral because they considered the family were blocking discharge plans. This was not an appropriate reason to use safeguarding processes which are designed to enable councils to co-ordinate enquiries into allegations of possible abuse. This was not an allegation of suspected abuse, but a dispute about post-discharge care. The Trust was at fault in using safeguarding procedures to deal with a hospital discharge issue. Instead, the Trust should have convened a formal pre-discharge meeting with all those involved with Mrs B’s care in June 2016.
136. The conclusion at the safeguarding meeting was there was no evidence of abuse and the matter should be dealt with as discharge planning rather than through safeguarding.

Complaint (e): The Council failed to investigate and act on safeguarding concerns raised by the family regarding Mrs B’s lengthy stay in hospital and regarding failings by the Nursing Home in October/November 2017

137. Mrs A contacted the Care Quality Commission in March 2017 with safeguarding concerns about Mrs B losing weight in hospital and about evicting her. The Council told her the Trust’s safeguarding lead would investigate and feed back to it, and then the Council would arrange for the family to have feedback. There is no report, email or evidence of any enquiry and no feedback to the family. This was not in line with the safeguarding duties set out in section 42 of the Care Act and was fault.
138. Mrs A contacted the Council with a further safeguarding concern in October 2017 about the nursing home’s monitoring of her mother. The safeguarding manager visited the Nursing Home, looked at selected records and discussed Mrs A’s concerns with the manager. The outcome was the manager agreed to document all checks on Mrs B, even checks which did not result in any care being given. I am satisfied the safeguarding enquiry was in line with section 42 of the Care Act 2014. Mrs A raised further concerns about Mrs B’s care on specific dates, including about the vomiting and oxygen tube incidents, which the Nursing Home responded to separately. I do not consider there was a requirement for the safeguarding manager to make any further enquiries, as Mrs A’s concerns would be resolved by the changes to record keeping agreed by the Nursing Home. The vomiting and oxygen tube incidents had already been dealt with by the Nursing Home in a detailed investigation report which Mrs A had seen.

Complaint (f): The Council refused to implement a home care plan drawn up in June 2016 by the Chair of a safeguarding meeting

139. The minutes of the safeguarding meeting clearly started the funding discussed at the meeting was not authorised by the Council and was the family’s proposal. The chair said the proposal would need the Council’s funding panel’s approval. I am satisfied from the minutes of that meeting that the family were aware of this. The Council’s communication on this point was clear and there was no fault. I have found fault in the failure to offer a home care package in July 2017 (complaint a.)

Complaint (g): The Trust threatened Mrs B with legal proceedings in October 2016 and April 2017 and continually subjected Mrs B to unnecessary mental capacity assessments

140. Mrs B had no legal right to remain in a hospital bed as she was medically ready for discharge, her ineligibility for CHC had been determined and the Council had put forward a plan of care to meet her needs. There was no issue about which body was going to fund: the Council was going to fund the Nursing Home temporarily and until the CHC appeal was determined. I accept Mrs B and her family intended to appeal the decision on CHC. There was still no right for Mrs B to remain in hospital whilst questions of funding and care location were being decided. It was open to Mrs B to have taken up the Nursing Home placement until the CHC appeal took place. I accept she did not want to go into a nursing home, but this did not mean she had a right to stay in hospital. There is no fault in the Trust advising Mrs B that it intended to start legal proceedings.
141. There was no fault in the Trust completing assessments of Mrs B’s mental capacity to decide on her care. This was in line with the Mental Capacity Act: if there is any doubt about a person’s capacity, there should be an assessment. Once Mrs B she did not want any further capacity assessments, the Trust did not complete any. I do not uphold this complaint.

Complaint (h): Mrs B was moved to a nursing home against her wishes, and the Trust denied her the opportunity to seek advice from a solicitor and her family

142. I am satisfied the Trust acted appropriately in discharging Mrs B and there was no fault. I have taken into account:
• Guidance recommends in most cases CHC eligibility should not be determined in an acute hospital setting and that it can be appropriate to provide interim care in another location where CHC assessments can take place;
• There is no legal right to remain in hospital once a person is medically fit and has a safe discharge plan, even when that plan is not what the person wants and there are ongoing disputes about which public body will pay for care. Such disputes can be settled in the community through the CHC appeal procedure or the complaint procedure;
• Senior nursing staff spoke to Mrs A, Mrs B and to Mrs A’s sister either on the day of discharge, or the previous day. The Trust was clear with the family about what it intended to do;
• The mental capacity assessment concluded Mrs B had capacity to decide on her care arrangements. She said she would prefer to go home but did not object to going into the nursing home at the time of the transfer (whatever her previously expressed views had been);
• There is no evidence Mrs B asked for a representative and her other daughter was available;
• It would have been an inappropriate use of an acute hospital bed to allow Mrs B to remain an inpatient until her family returned from their holiday.

Complaint (i): Mrs B received poor care at the Nursing Home. She was left unattended for long periods of time despite this being unsafe, there was no regular access to fluids despite having kidney failure, there was poor nutrition, poor nursing care and care records were not being maintained;

143. The Nursing Home did not record all the checks it did on Mrs B for the first two months of her stay or record her oral food and fluid intake (though it recorded all her intake through the tube). This means the Nursing Home cannot evidence Mrs B’s oral intake or checks by staff where Mrs B was sleeping and/or did not need any input. The Nursing Home failed to act in line with Regulation 17 of the 2014 Regulations in its record keeping and this was fault. As an outcome to the safeguarding enquiry, staff were instructed to record all checks, even those where no action was needed. This was an appropriate response to Mrs A’s concerns.
144. There is no evidence to support Mrs A’s complaint that her mother had inadequate access to fluids and food. Mrs B received food and fluids through her tube as prescribed by the dietician and staff kept detailed charts of her intake by tube. Oral food and fluids were supplementary. Care was in line with Regulations 9 and 14 of the 2014 Regulations and there was no fault. Staff weighed Mrs B weekly and she gained weight, going from an underweight to a normal weight. Nursing charts recorded regular wet pads suggesting appropriate hydration. There was no fault and so I do not uphold complaints about poor food and fluid intake.
145. The records on the night when Mrs B vomited when Mrs A was visiting showed nurses monitored her several times and called a GP when her oxygen levels went below normal levels for her. This was an appropriate action; care was in line with the care plan and in line with Regulation 9. I do not uphold the complaint about poor nursing care.

Complaint (j): Mrs B’s haemoglobin levels dropped below transfusion levels but her GP refused to readmit her to hospital

146. On 20 October, Mrs B’s haemoglobin levels were at 74 g/litre and so above the transfusion threshold of 70 g/litre recommended in NICE guidelines on blood transfusions. The GP reviewed her four days later and found she did not have any symptoms of anaemia. This meant her anaemia was not causing her any problems and so there was no reason to admit her for a transfusion given she was above the threshold as well.
147. The GP arranged a repeat blood test and on 13 November, Mrs B’s haemoglobin level was 62g/litre. She was noted to be breathless and as breathlessness is a symptom of anaemia and her level was below the transfusion threshold, one was arranged urgently. Mrs B’s GP care was in line with published NICE guidelines and so there was no fault.

Did the fault cause injustice requiring a remedy?

148. I have upheld some of Mrs A’s complaints:
• There was a nine-month delay by the Council in providing a care and support plan setting out the home care it was willing to provide and a failure to make enquiries in March 2017 or give Mrs A feedback after she reported concerns about Mrs B’s weight loss and care in hospital;
• There was a delay by the CCG in hearing a CHC appeal and a failure to offer a home care package of palliative care for Mrs B and a failure to offer her a personal health budget/direct payment;
• There was a failure by the Council and CCG to communicate effectively about planning Mrs B’s care after discharge and a failure to use the dispute resolution procedure in May 2017;
• There was poor record keeping by the Nursing Home;
• The Trust made a safeguarding alert inappropriately when the issue was not a safeguarding one, but was about Mrs B’s discharge.
149. Other than poor record keeping, I have not upheld any complaints about Mrs B’s care in the Nursing Home. I have not upheld complaints about the GP. The Trust was not at fault in discharging Mrs B to the Nursing Home or in threatening legal proceedings.
150. It is too speculative to say what would have happened had the family been offered the April 2017 care package in July 2016. I note that in July 2016 the family were asking for nine hours of care at night and five hours in the day. This was significantly more care than on the Council’s care plan. There is not enough evidence to conclude on a balance of probability that Mrs B would have been discharged home in July 2017 had she been offered the home care on the April 2017 care and support plan.
151. I do conclude that Mrs A and her family were caused avoidable frustration and distress by the Council’s delay in offering home care and delay in hearing the CHC appeal. I note the appeal was unsuccessful. There is no significant injustice caused by the failure to use the dispute resolution process as the CCG was funding Mrs B’s care from July 2017. The CCG cannot evidence its claim to have offered Mrs B palliative care at home and it did not offer her a direct payment with which to arrange her own end of life care. The failure to offer a personalised service to Mrs B was an injustice personal to her. It also caused Mrs A and her family avoidable frustration and distress.

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Agreed action

152. The failings by the Council and CCG caused Mrs A and her family avoidable distress. To remedy the injustice, they should apologise. The Council and CCG should each pay Mrs A £500 to reflect her avoidable distress.
153. The Nursing Home and Trust should apologise for the fault I have identified and for the avoidable distress to Mrs A and her family.
154. The apologies and payments should be made within one month of the final decision.

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Final decision

155. The complaint is about the late Mrs B’s care in hospital, in a nursing home and by her GP. I have upheld complaints about poor discharge planning by a council and clinical commissioning group. I have also upheld a complaint against an NHS trust for making a safeguarding referral unnecessarily. I have also found poor record keeping by a nursing home. I have not upheld complaints about GP care, poor care in the nursing home or about the trust discharging Mrs B to the nursing home.
156. I have made recommendations for payments and apologies to remedy the distress to Mrs B’s daughter and her family.
157. I have completed my investigation.

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Parts of the complaint that I did not investigate

The Nursing Home, GP and a consultant from the Trust failed to complete a fast track application for NHS continuing healthcare

158. I have discontinued my investigation of this complaint because Mrs B was receiving fast track CHC funding from July 2017 until her death and so there was no injustice to her in any alleged failure to complete fast track applications.

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Investigator's decision on behalf of the Ombudsman