Sutton Clinical Commissioning Group (17 018 278a)

Category : Health > Other

Decision : Upheld

Decision date : 19 Sep 2019

The Ombudsman's final decision:

Summary: The complainant, Mrs B, says communication between the London Borough of Sutton and Epsom and St Helier University Hospitals NHS Trust was poor when they dealt with her late husband’s discharge from hospital. She also complained about the way Sutton Clinical Commissioning Group considered her husband’s eligibility for healthcare funding. The Ombudsmen found communication between the Council and the Trust was satisfactory, but they failed to share copies of assessments with Mrs B. The Clinical Commissioning Group properly considered whether Mrs B’s husband was eligible for healthcare funding but did not initially write to Mrs B with the outcome of its consideration. The authorities have agreed to the Ombudsmen’s recommendations and will apologise to Mrs B, pay a financial remedy to acknowledge the injustice caused and remind their staff of the importance of sharing copies of assessments and outcome of decisions.

The complaint

  1. The complainant, who I shall refer to as Mrs B, complains about the way London Borough of Sutton (the Council) and Epsom and St Helier University Hospitals (the Trust) dealt with her late husband’s, Mr B’s, discharge from hospital. Mrs B complains that:
    • the authorities’ communication and care and support planning was poor;
    • they did not properly involve her when making decisions;
    • they did not provide enough support to help her find a suitable care home;
    • and did not share the outcome of assessments, support plans and clinical reports with her.
  2. Mrs B also complains that Sutton Clinical Commissioning Group (the CCG) did not follow the healthcare funding process properly and failed to tell her the outcome of its consideration.

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The Ombudsmen’s role and powers

  1. 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)
  2. 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)).
  3. 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.
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by the complainant in writing and by telephone. I have considered information provided in response to the Ombudsmen’s enquiries by the Council, the Trust and the CCG. I have also considered the law and guidance relevant to this complaint.
  2. All parties were given an opportunity to respond to a draft of this decision.

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What I found

  1. The provisions on the discharge of hospital patients with care and support needs are contained in Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014. The NHS is required to issue a notice to the local authority where they consider that an NHS hospital patient in receipt of acute care may need care and support as part of supporting a transfer from an acute setting. In general, the NHS should seek to give the local authority as much notice as possible of a patient’s impending discharge.
  2. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
  3. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
  4. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates (the adult or carer) with a copy of its decision.
  5. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker must consider if there is a less restrictive choice available that can achieve the same outcome.
  6. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care October 2018 (Revised) (the National Framework) is the key guidance about Continuing Healthcare. At the time of events of this complaint the 2012 guidance was in force.
  7. Assessments of eligibility for NHS continuing healthcare and NHS-funded nursing care should be organised so that the individual being assessed and their representative understand the process. They should receive advice and information that will maximise their ability to participate in informed decision-making about their future care. Decisions and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.
  8. Assessment of eligibility for NHS continuing healthcare can take place in either hospital or non-hospital settings. It should always be borne in mind that assessment of eligibility that takes place in an acute hospital may not always reflect an individual’s capacity to maximise their potential. This could be because, with appropriate support, that individual has the potential to recover further in the near future. It could also be because it is difficult to make an accurate assessment of an individual’s needs while they are in an acute services environment.
  9. Before the Checklist is applied, it is necessary to ensure that the individual and (where appropriate) their representative understand that the Checklist does not necessarily indicate that the individual will be eligible for NHS continuing healthcare – only that they are entitled to consideration for eligibility.
  10. Once an individual has been referred for a full assessment for NHS continuing healthcare (following use of the Checklist or, if a Checklist is not used in an individual case, following direct referral for full consideration), then, irrespective of the individual’s setting, the CCG has responsibility for coordinating the whole process until the decision on funding has been made and a care plan agreed. The CCG should identify an individual (or individuals) to carry out this coordination role, which is pivotal to the effective management of the assessment and decision-making process. By mutual agreement, the coordinator may either be a CCG member of staff or be from an external organisation.

Background

  1. Mr B previously lived at home with his wife, Mrs B, who is also his main carer. He went into hospital in May 2017 after a fall.
  2. Discharge planning started a few days later and a social worker went to visit
    Mr B on the ward to assess what support he would need on discharge. The social worker noted Mr B had dementia and was at high risk of falls due to his confusion. Mrs B was not present during the meeting but the social worker met with her on the ward later the same day and provided an update.
  3. The social worker felt Mr B could return with a care package in place, but Mrs B disagreed. She felt Mr B could not be left on his own at home due to the high risk of falls.
  4. The social worker contacted Mrs B by email to provide an update on the assessment process. The social worker said they would recommend Mr B be discharged to an Elderly Mentally Ill (EMI) residential home that cares for people with dementia. The social worker agreed it was not safe to discharge Mr B home.
  5. The CCG received a referral from the discharge coordinator in July 2017 which contained a checklist for CHC healthcare funding. The discharge coordinator noted that Mr B’s score after completing the checklist triggered the need for a full consideration for healthcare funding completed via a DST. The CCG did not complete the DST and did not write to Mr and Mrs B to update them about the CHC process.
  6. However, an email from the Council to Mrs B in July stated the CHC checklist did not lead to full consideration of a full assessment (DST). The Council asked the CCG to review the checklist because of Mr B’s high risk of falls and the CCG agreed to provide FNC on this basis.
  7. Mrs B replied to the email and said she was confused about the healthcare funding as someone had told her Mr B did not meet the criteria. Mrs B also asked what a step-down interim placement meant and clarification about what the FNC would pay for.
  8. The Council officer replied and said, “I am suggesting an interim step-down nursing home placement mostly because I believe [Mr B] needs to be discharged from hospital as soon as possible, not because the hospital needs the bed, but because it is just not the right environment to remain in.” The Council’s officer told Mrs B they needed to follow the best interests or least restrictive options for discharge and it was not right to make a longer-term decision from an acute hospital setting. The officer told Mrs B the brokerage team would contact her with nursing home vacancies she would be able to view.
  9. At the beginning of August the Council’s Brokerage Team contacted Mrs B by email about available nursing home placements. The email said all the three vacancies identified were nursing homes and not care homes. The Brokerage Team confirmed an officer would contact the homes to let them know Mrs B would make contact. Mrs B acknowledged receipt of the email and thanked the Council’s officer for making her aware of the process. She remained concerned about the cost of the placement and how it would be funded so asked further questions.
  10. A Council officer replied to Mrs B’s questions and said, the placement would be funded by the Council in the interim and it would complete a review within six weeks as part of the best interests process. The officer said the issue of Mr B’s capacity to manage his finances would be addressed but to date no financial assessment had been completed so it was unknown how much Mr B would have to contribute. The Council said it was up to each nursing home to decide whether they could meet Mr B’s needs.
  11. Mrs B replied to the email and said she was worried she would not be able to afford to stay in her house after receiving a financial assessment which only asked for minimum expenditure. She also asked for clarification about the best interests process. The Council officer replied to provide further advice but accepted she had a gap in knowledge about the financial assessment process.
  12. Mrs B sent an email asking if one of the homes (Home X) had accepted Mr B following her viewing of the home. A Council officer replied and said the two rooms which were available were no longer available. However, Home X had said Mr B would be added to the waiting list. The Council told Mrs B about a different nursing home but she said she preferred for Mr B to go to Home X or a similar home because everything was on one level.
  13. Mrs B sent an email to the Council and the Trust after she and her family had visited other nursing homes. She said there was differences of opinion between the local authority and the NHS about Mr B’s mobility and ability to manage stairs. Mrs B asked the authorities to provide her with copies of written information relating to Mr B’s mobility such as occupational, physiotherapy and psychiatric reports. Mrs B accepted Mr B was not well enough to return home but should not stay in hospital. She felt Mr B needed somewhere between home and a nursing environment. The Council remained of the view Mr B needed to be discharged to a nursing home.
  14. On the same day Mrs B’s son sent an email to the Council to say the family had received mixed messages about from the different people involved in Mr B’s care. Mrs B’s son said the family felt they were in the dark because they had not received copies of assessments despite asking for them. Mrs B’s son referred to two nursing homes the family had identified as potentially suitable for Mr B.
  15. The Council responded to the email and said one of the homes identified by the family had refused to assess Mr B as it did not have a vacant room located on the ground floor. Another two homes were not suitable as one only contracted with private clients and the other home had no vacancies. The email said Home X now had a vacancy, had agreed to assess Mr B on the ward and the Council’s Brokerage team would follow this up.
  16. Mrs B’s son replied a few days later and said he understood that Home X had assessed Mr B and asked for an update. He also asked the Council and the Trust to provide the family with copies of assessments already completed. Mr B was discharged from hospital to Home X a few days after this.

Findings

Communication, Mrs B’s involvement and sharing information

  1. There is evidence to shows discussions between the Council and the Trust about Mr B’s care and support and the discharge arrangements. The Trust sent a notice to the Council asking it to assess Mr B’s need for social care. When the initial plan was for Mr B to return home with a care package, therapists completed mobility and ability assessments with Mr B such as a stairs assessment. It later became clear this was not the preferred option and the Council involved Mrs B in this decision and acted on the information she had provided which included concerns about Mr B’s safety if left alone at home.
  2. The evidence available shows the Council and the Trust did involve Mrs B in some discussions about Mr B’s discharge and what care and support he would need. For example, a social worker emailed Mrs B to tell her what type of home she was recommending in her assessment. It is evident the social worker had obtained information from the ward which suggests the Council and the Trust had shared information to inform decision making. The email set out the category of need considered throughout the assessment.
  3. Further communication between the Council, the Trust and Mrs B included email correspondence, face to face and telephone discussions. There was reference to the best interests process and Mr B’s capacity to make decisions and the Council involved Mrs B in this process although it did not arrange a formal best interests meeting which is not required by law. Therefore, I do not find fault with this part of the complaint.
  4. There is a lack of evidence to show the Council and the Trust shared the outcome of assessments with Mrs B. For example, the Council did not provide Mrs B with a copy of the needs assessment it completed although it had referred to this in an email. Mrs B and her son also sent email to the Council and the Trust asking for copies of clinical assessments completed. There is no evidence to show the Trust and the Council provided these to Mrs B after she made requests. This is fault.
  5. The Council said Mrs B preferred communication was by email and it would have been good practice for it to have provided assessments to her via this route if necessary. Mr B was new to the social care process and Mrs B did not always understand the language or terminology used by health and social care officers.
  6. The Council and the Trust could have provided Mrs B with more printed information such as leaflets which explained the process or terminology. Because of the failure to share copies of assessment with Mrs B it is likely she experienced frustration as well as having to take time to ask more questions or chase information.
  7. When responding to Mrs B’s complaint the Council said health assessments such as physiotherapy and occupational therapy should have been provided by the Trust. The Trust it expected the Council to provide them as it was a dual investigation. The Ombudsmen find both the Council and the Trust at fault.

Support from the Council to help Mrs B choose a care home

  1. The documentary evidence available supports the view the Council provided
    Mrs B with information about care homes via its Brokerage Team. An email sent to Mrs B from the Council listed three nursing home with vacancies which she could view.
  2. Mrs B also provided details of homes she felt were appropriate to place her husband. The Council felt some of these homes were unsuitable because one only took private residents, and another had limited information to inform the quality and safety of the home as it had not been inspected by the regulator. This is likely to have caused Mrs B some frustration but I cannot say this is because of fault by the Council.
  3. The evidence available suggests Mrs B’s frustration was further exacerbated by the lack of information she had about Mr B’s mobility. She was not sure whether he needed a ground floor room or whether he could be placed in a room accessible by stairs. It the Council and the Trust had provided Mrs B with copies of the assessments and reports they had completed she would have had a better understanding about Mr B’s needs. This would have helped her make a more informed choice about which homes would have been suitable for her husband.

Healthcare funding considered by the CCG and information it shared with Mrs B

  1. The first checklist completed indicated a full assessment (DST) would be needed. The CCG did not complete a DST at the time because Mr B remained on an acute ward. The CCG wanted to wait to complete a full assessment until Mr B was discharged and this was in keeping with good practice.
  2. The evidence available shows the CCG communicated with the Council when it considered Mr B’s eligibility for continuing healthcare funding. When the CCG made its decision it did not send an outcome letter to Mr and Mrs B as it should have done. This is fault, which then led to Mrs B having to question what was happening as she was confused during the process.
  3. The National Framework says, “Assessments of eligibility for NHS continuing healthcare and NHS-funded nursing care should be organised so that the individual being assessed and their representative understand the process, and receive advice and information that will maximise their ability to participate in informed decision-making about their future care. Decisions and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.”
  4. This fault is likely, on balance, to have contributed to Mrs B’s frustration with a process she was not familiar with.
  5. The CCG deferred its decision on Mr B’s eligibility for healthcare funding while he remained in the acute hospital setting. The CCG acted in accordance with good practice and I do not find fault in the way it made this decision.
  6. When the CCG decided to defer the decision on Mr B’s eligibility for healthcare funding it could have taken a more active role to coordinator the process as outlined in the National Framework. However, at the time the Council was already leading on the process and the CCG left the Council to continue with the coordination role. Although the CCG was not explicit about the Council keeping the coordination role it was likely the most pragmatic way forward at the time to help streamline the process of care planning.
  7. After Mr B was discharged from hospital the CCG asked for a new checklist and this did not lead to a referral for full consideration for healthcare funding. The CCG wrote to Mrs B with the outcome in a letter and this shows an improvement.

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Agreed Recommendations

  1. The Council, the Trust and the CCG have agreed to the Ombudsmen’s recommendations and will:
    • write a coordinated letter to Mrs B to apologise for the frustration and any distress she experienced when they failed to provide her with copies of assessments, clinical reports and the outcome of the first healthcare funding consideration;
    • collectively pay Mrs B £300 (£100 each) to acknowledge her injustice at a time when she was dealing with difficult decisions about the care and support her late husband would have needed;
    • provide Mrs B with copies of clinical assessments and other information not already provided to her (the Trust); and
    • remind officers of the importance of sharing the outcome of assessments and decision outcomes in writing with people who use services and their representatives.

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Final decision

  1. The Council, the Trust and the CCG have agreed to the Ombudsmen’s recommendations. This remedies the injustice caused by the faults. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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