The Ombudsman's final decision:
Summary: Mr B complained about the way the Council and the Trust dealt with his late aunt’s discharge arrangements from hospital to a nursing home. He also complained about the Trust’s communication about his aunt’s care and treatment and the Council’s communication with the coroner following his aunt’s death. Mr B said the actions caused him avoidable distress and affected his aunt. The Ombudsmen found the Trust and the Council accepted there were at fault in some areas when responding to Mr B’s complaints. The Council and the Trust improved and remedied any injustice before
Mr B complained to the Ombudsmen. Therefore, there is nothing more the Ombudsmen can achieve.
- The complainant, who I shall refer to as Mr B, complains about the poor communication and the actions of Norfolk County Council’s (the Council) and Norfolk and Norwich University Hospitals NHS Foundation Trust’s (the Trust) staff when his aunt received care in hospital and was discharged to a nursing home. He also complains about the care provided to his late aunt, Ms G, by the Trust and the support provided by the Council. Mr B says the Trust failed to adequately respond to his complaints. He claims the alleged faults caused him avoidable distress and he does not want others to be affected.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information from the Council, the Trust and Mr B. All parties have been given an opportunity to respond to a draft of this decision.
What I found
- Department of Health guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) (the ‘Ready to go guidance’) is the core guidance around hospital discharge. It contains ten key steps for staff to follow during discharge planning, including:
- start planning for discharge or transfer before or on admission;
- identify whether the patient has simple or complex discharge and transfer planning needs and involve the patient and carer in your decision;
- involve patients and carers so that they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.
- Department of Health guidance: Definitions – Medical Stability and ‘Safe to Transfer’ (2003) (the ‘Safe to transfer guidance’) gives guidance on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for making this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is safe for discharge when:
- a clinical decision has been made that the patient is ready for transfer;
- a multidisciplinary team decision has been made that the patient is ready for transfer; and,
- the patient is safe to discharge/transfer.
A patient can be defined as clinically or medically stable if tests (such as blood tests and observations) are within the normal range for the patient. A patient is ‘fit for discharge’ when all relevant physiological, social, functional, and psychological factors have been considered. This can require a multidisciplinary assessment.
- NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
- NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC or FNC and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
- For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. If the outcome of the Checklist is not to carry out a full assessment, the CCG should write to the person and tell them they have a right to ask the CCG to reconsider it. If they disagree with the outcome once the CCG has reconsidered the decision, they can complain to the CCG. There is no further right of appeal.
- A nurse will usually co-ordinate a full multidisciplinary assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment.
- The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and 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 less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home, hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice. The Law Society published non-statutory guidance, Identifying a deprivation of liberty: a practical guide (Apr 2015) to assist those involved with DoLS to understand the process.
- Palliative care is for people living with a terminal illness where a cure is no longer possible. It’s also for people who have a complex illness and need their symptoms controlled. Palliative care aims to treat or manage pain and other physical symptoms. It will also help with any psychological, social or spiritual needs. Treatment will involve medicines, therapies, and any other support that specialist teams believe will help their patients.
- The GMC guidance of 2010 provides information about cardiopulmonary resuscitation (CPR) and when doctors should consider making a ‘Do Not Attempt Resuscitation’ decision (known as ‘DNAR’). It explains that CPR has a very low success rate and can cause rib fractures, damage to internal organs, brain damage and an undignified and traumatic death. It says when a patient is admitted to hospital acutely unwell and death is a foreseeable risk, doctors should make and record a decision about CPR as early as possible. The guidance says doctors should carefully consider whether it is appropriate to tell the patient that a DNAR decision has been made. If they consider it is not appropriate to discuss it with the patient, they should note this in the patient’s records and ask the patient for consent to discuss their treatment with those close to them.
- Under the terms of ‘The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009’ (the ‘Complaints Regulations’) there is a duty to investigate complaints properly and in a way that will resolve them efficiently. There is also a duty to cooperate when a complaint is made to one organisation and contains material relevant to the other.
- The Complaints Regulations say that the organisations must “co-operate for the purpose of (a) coordinating the handling of the complaint; and (b) ensuring that the complainant receives a coordinated response to the complaint.” This involves a duty on each of them to agree who should take the lead in coordinating the handling of the complaint and communicating with the complainant. They must both provide each other with relevant information if so requested by the other and must attend, or ensure they are represented at any meeting held about the complaint.
- Ms G had a history of dementia and coffee ground haematemesis (a sickness where vomit resembles coffee grounds). In January 2014, she transferred to one of the Trust’s hospitals and stayed for about a week before being discharged.
Ms G was readmitted to hospital a few months later.
- Mr B said he met with a doctor to discuss Ms G’s care and treatment. He said the discussions centred around palliative care in hospital. Mr B said he then received “continuous pressure” from the community care team about arranging his aunt’s discharge from hospital.
- Mr B went to a meeting in July to discuss Ms G’s discharge from hospital and whether she could be considered for continuing healthcare. He said this was the first time he met the social worker involved in Ms G’s case and the terminology used by officers was not properly explained to him. Two nursing homes were identified which could accommodate Ms G once she was discharged. Mr B was unhappy with the choices available.
- When Ms G transferred to a nursing home a few days later, Mr B was unhappy with the way the transfer was dealt with. He said relevant medical information was not transferred with his aunt and she was transferred by ambulance without a chaperone. Mr B went to visit his aunt the following day and said he found her soiled and still in her “day clothes”.
- Mrs was readmitted to hospital again about a week later. Mr B said he received a call from a doctor to say there were no notes from the care home and they also discussed the possibility of blood transfusion for Ms G which was subsequently given. Mr B said he was confused by this as a doctor had previously told him
Ms G would only receive palliative care and conservative ward based treatment. Mr B said his aunt was given a prognosis of six weeks.
- Mr B said he met with a doctor in August who apologised for the blood transfusion given and explained the mistake was due to human error. Ms G was discharged from hospital to a nursing home a few weeks later to receive palliative care. A DoLS application was made but Mr B said nobody properly explained this process to him.
- Ms G passed away in October 2014. Mr B said the home did not have information about his aunt’s prearranged funeral plan and as a result she was moved to the wrong undertaker.
Mr B’s complaints to the Trust and the Council
- The Trust received a complaint from Mr B shortly after Ms G passed away. Mr G complained about the way the Council and the Trust managed his aunt’s discharge arrangements.
- The Trust arranged a complaint meeting with Mr B and his advocate to discuss the care provided to his aunt and the concerns he had raised. The Trust obtained further information from Mr B to expand his complaint and agreed to formally investigate, with all the organisations involved, several questions he had asked.
- The Trust gathered responses from all the relevant individuals, departments and organisations involved in Ms G’s care during the period Mr B complained about. It took the Trust about three months to gather all the information it needed so it could respond to Mr B’s complaint.
- The Trust wrote to Mr B in April 2015 following its investigation of the complaints. It confirmed it had incorporated the Council’s response to specific questions he had asked. The letter said:
- The decision to give his aunt a blood transfusion was not left for Mr B and a junior doctor to decide as three separate clinicians had been involved in the decision. There was a DNAR in place but this did not prevent clinicians deciding what was in Ms G’s best interests when considering treatment.
- There was an omission in the discharge letter created in July 2014 which meant when she was readmitted a few days letter the medical team were not aware of the previous discussion to provide Ms G with palliative care. However, there were no set rules to define what constituted palliative care.
- The Trust had already acted to improve the discharge letter and the action included revising the discharge letter, revision of the prompts guiding clinicians when completing the letter and changes to the training programme relating to the use of the templates.
- Mr B should have received a CHC information leaflet before attending the meetings which were part of the CHC DST assessment. The Trust apologised that he did not receive the information.
- The Council was not clear what the purpose of an introductory meeting between Mr B and social worker would have been before a formal meeting. It accepted its communication and continuity with social workers could have been better. The Council apologised for any distress or confusion caused.
- Before Ms G was discharged from hospital she was assessed by the nursing home in hospital. The assessor had access to Ms G’s nursing and medical records to identify care needs and contribute to the overall assessment. Ms G did not need anticipatory medication and once discharged to a community a general practitioner would be expected to provide medication.
- Ms G was assessed as eligible for FNC and the CHC team would not have been involved in her discharge from this point. The Trust should have given
Mr B a public information leaflet about funding. It apologised if Mr B felt unsupported in choosing a care home. M
- The Trust should have given Mr B a copy of the DST criteria before the meeting and a copy of the final completed DST once the clinical commissioning group made the eligibility decision. It apologised to Mr B and said staff would improve. The Trust also apologised for not telling Mr B about the Dementia Team.
- The Council was not responsible for noting undertakers’ details in individual care homes. The nursing home should have had the correct details about
Ms G’s pre-arranged funeral details and it was the home’s responsibility as the DoLS managing authority to communicate with the coroner.
- The Council had met with the coroner’s office and agreed a process improve communication when someone who is subject to DoLS dies.
- Mr B felt his late aunt’s discharge from hospital was not dealt with properly by the Council and the Trust. The Trust responses to the complaint incorporated the Council’s comments and this was good practice in complaint handling.
- When responding to Mr B complaints the Trust accepted there were errors with the discharge letter which contributed to poor communication when Ms G was readmitted. The Trust acted to improve the discharge letter to prevent similar mistakes. There was a fault by the Trust but it acted to improve and it also apologised to Mr B. The action by the Trust remedied any injustice caused by this fault so is not necessary for the Ombudsmen to make another recommendation.
- The Trust also apologised to Mr B when it was not clear he received information about the CHC process/funding. It understandable Mr B may have felt overwhelmed when he attended the meeting where officers discussed the CHC process/funding and used terminology he did not understand. It would have been good practice for the officers involved to have explained the terminology to Mr B and give him any necessary written information. The Trust apologised to Mr B when it responded to his complaint. The Ombudsmen cannot achieve anymore by investigating further.
- The social worker did not meet with Mr B prior to the meeting. Although Mr B felt this was wrong I cannot say this was fault by the Council in its statutory duty. The Council accepted the continuity of officers and communication could have been better and apologised to Mr B. It is unlikely the Ombudsmen can achieve any more than this by further investigation.
- The Trust provided a good explanation to show why Ms G was not discharged with medication. Although Mr B remains unhappy with the explanation it is unlikely the Ombudsmen’s investigation could achieve more to explain this point further. In any case the home completed an assessment and it was expected the home would liaise with a GP once Ms G was back in the community.
Communication around the DNAR decision
- Mr B complained his aunt was given a blood transfusion when a doctor had previously told him she was to receive palliative care. Mr B felt the blood transfusion amounted to treatment over and above palliative care.
- The Trust told Mr B there was no exact definition for palliative care and I agree with what the Trust says. In general palliative care is meant to manage an illness or condition. It is for clinicians to decide what treatment should be provided on case-by-case basis. In addition, DNAR is also a clinical decision rather than one made by patients or their representatives. Mr B was told a DNAR was in place but there was no prescriptive treatment plan for Ms G. Therefore, I do not find fault by the Trust.
The Council’s communication with the coroner and funeral directors
- It is understandable the events which occurred after Ms G died may have caused Mr B some distress. However, I do not find this was because of direct fault by the Council. The Council cannot be expected to be aware of the funeral arrangements of all care home residents in its area. The home could have gleaned this information either from Ms G or her representatives. Similarly,
Ms G’s representatives could have told the home or the Council about specific funeral plans they were aware of.
- The Council acted to make some improvement after Mr B complained about the issues. It met with the coroner’s office and agreed a process improve communication when someone who is subject to DoLS dies. This is good practice by the Council and it is not necessary for the Ombudsmen to make a further recommendation.
- The Trust led on the investigation and incorporated comments from the Council in line with the complaints regulations. The investigation took longer than it should have but the Trust apologised for this. The Trust and the Council both accepted there was fault in some of the concerns Mr B raised. The authorities acted to improve and remedy any injustice before Mr B complained to the Ombudsmen.
- The Council and the Trust improved and remedied any injustice before Mr B complained to the Ombudsmen. Therefore, I have completed the investigation.
Investigator's decision on behalf of the Ombudsman