Summary: We do not consider Worcestershire Acute Hospitals NHS Trust acted with fault when it assessed Miss X’s mental capacity. Also, when it discharged her to a Nursing Home it did so in her best interests.

The complaint

1. The complainant, whom I shall call Mr X, says Worcestershire County Council (the Council) and Worcestershire Acute Hospitals NHS Trust (the Trust) wrongly considered his sister, Miss X, did not have capacity to make decisions about her discharge. He says the Council and Trust did not consider his wishes during the discharge process or involve him when they discharged her to a Nursing Home. He says she should have been discharged home with a package of care, as was initially agreed. Mr X says that was distressing for both him and Miss X.
2. Mr X also complains how the Council’s safeguarding team handled a telephone call in March 2020. Mr X says that caused him significant distress.
3. Mr X would like an independent investigation into the organisations and for them to accept their faults.

Back to top

What I have investigated

4. I have investigated paragraph 1 above. The final section of the statement contains my reasons for not investigating paragraph 2.

Back to top

The Ombudsmen’s role and powers

5. 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, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A (1), as amended).
7. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe it is unlikely would find fault and it is unlikely they could add to any previous investigation by the bodies. (Local Government Act 1974, section 24A(6), as amended)
8. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
9. 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)

Back to top

How I considered this complaint

10. I have considered information provided by Mr X and the organisations. Mr X and the organisations had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Key facts

11. The Trust admitted Miss X on 1 February 2020 after her mobility and confusion had worsened. During the admission, the Trust treated Miss X’s health problems until she was medically fit for discharge. A Physiotherapist and Occupational Therapist also supported Miss X to improve her mobility.
12. The Trust held a meeting with Mr X on 12 February about the choices for Miss X’s discharge. After a discussion, they agreed Miss X should move to a Nursing Home despite her wish to return home.
13. The next day, the Trust carried out a mental capacity assessment of Miss X and decided she lacked mental capacity to decide where she moved on discharge. The Trust then decided it was in her best interests to move to a Nursing Home for an assessment to understand her longer-term care and support needs. This is commonly called ‘discharge to assess’.
14. The Trust discharged Miss X on 21 February to a Nursing Home.

Analysis

15. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
16. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
17. 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 done, or made, 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 also consider if there is a less restrictive option available that can achieve the same outcome.
18. First, I do not consider the Council was involved in the assessment of Miss X’s capacity or the decision to discharge her to the Nursing Home. The Council identified the Nursing Home as a suitable placement for Miss X. However, it was the Trust who assessed Miss X’s capacity and made the best interest decision to discharge her to a Nursing Home. Therefore, I do not consider the Council acted with fault in Mr X’s complaint.
19. I have considered the Trust’s mental capacity assessment and best interest decision making document from 13 February 2020.
20. I do not consider the Trust made either decision with fault. I will explain why.
21. The Trust’s assessment of Miss X’s capacity was in line with the MCA and Code. The Trust identified that Miss X suffered severe cognitive impairment and during the admission was consistently unable to follow instructions. She could not understand information relevant to discharge. Also, she could not retain, use or weigh information to make that decision. Therefore, the Trust decided she lacked capacity to make her own decision around discharge. I cannot decide that the Trust’s decision was wrong. But I am satisfied it made its decision without fault and was in line with the MCA and Code. The Trust appropriately followed the steps as set out in the relevant guidance before it made its decision.
22. The Trust recognised Miss X preferred to move home on discharge. However, the Trust appropriately balanced Miss X’s wishes with the potential risk to her safety if she went home due to her increased needs. The Trust had concerns about Mr X’s handling and transferring of Miss X, which informed its decision to discharge Miss X to a Nursing Home. The records show the Trust tried to involve Miss X, but she would not provide any input during meetings. Also, the Trust has showed it considered the Nursing Home would be the least restrictive option for Miss X. Again, I cannot decide the Trust’s decision to discharge Miss X to a Nursing Home was wrong. But I consider it acted in line with the MCA and Code when it made that best interest decision.
23. Mr X says the Trust did not consider his wishes during the discharge process. I disagree. The Trust has provided evidence from the time which showed it involved Mr X in a meeting to discuss Miss X’s discharge.
24. During a meeting on 12 February 2020, an Occupational Therapist noted: “Pt [patient – Miss X] NOK [next of kin – Mr X] in agreement that D2A [discharge to assess] is the most appropriate discharge option for her [Miss X] now.” A Physiotherapist also noted that while Mr X did not agree his sister needed nursing care: “Brother [Mr X] in full agreement of D2A bed to ax [assess] pt needs further and if pt engages more in a more ‘homely’ environment”.
25. The records showed the Trust sought Mr X’s views during the discharge process and considered them before it made its best interest decision. I do not consider the Trust acted with fault during the discharge process.

Back to top

Final decision

26. I do not consider the Trust acted with fault when it assessed Miss X’s mental capacity and how it discharged her to a Nursing Home.

Back to top

Parts of the complaint that I did not investigate

27. I do not consider I should investigate Mr X’s complaint about the Council’s Safeguarding Team. I will explain why.
28. Clearly, the phone call in March 2020 was challenging for both parties, who could not reach a resolution during the call. I do not doubt Mr X’s version of events. However, on the balance of probabilities, Mr X was verbally aggressive during the call. Based on the evidence from the time, I am unlikely to find fault with the Council’s decision to end that call in March 2020.
29. Also, I am unlikely to be able to add anything to the Council’s explanation why Mr X’s call went to voicemail later that day. I consider the Council has clearly explained the process when no one is available to take a call.

Back to top

Investigator's decision on behalf of the Ombudsman