Summary: There was fault in discharge planning and poor communication which caused Ms X and Mr Y avoidable distress. The Council will apologise.

The complaint

1. Ms X complained for her relative Mr Y about Shropshire Council’s (the Council’s) role in discharging Mr Y from a care home. Ms X said it was not safe for Mr Y to be at home, even with a care package and she had little notice he was going home.
2. Ms X said this caused her and Mr Y avoidable distress and also meant Mr Y had to be readmitted to the care home.

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The Ombudsman’s role and powers

3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published Good Administrative Practice during the response to COVID-19.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I considered the complaint to us, the Council’s response to the complaint and documents later in this statement. I discussed the complaint with Ms X.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
9. COVID-19 Hospital Discharge Service Requirements, published by the government in March 2020 was in force when Mr Y was in hospital. It changed the normal hospital discharge process and established a ‘discharge to assess’ model (D2A) to free up acute hospital beds. D2A envisaged 95% of people receiving care and support to recover at home (or not needing any care and support). 4% would have short-term rehabilitation in a care or nursing home bed. 1% would require nursing home/long term care. I have set out relevant paragraphs of the guidance below:
• Unless required, patients must not remain in an NHS bed and must be discharged as soon as this is clinically safe
• For patients who cannot return to their home, a suitable bed in a care home will be arranged, paid for by the NHS during COVID-19
• People discharged from hospital to a community bed in a care home for 14 to 21 days should have a health and social care assessment in their home environment, their care needs should be agreed with them and equipment, reablement support and advocacy provided if necessary.
• Council adult social care services are asked to work together effectively with the NHS. Councils can meet urgent needs under section 19 of the Care Act when they have not completed an assessment.
• People who need a 24-hour care setting should have a case manager (such as a social worker or a nurse) to review them regularly. Discharge should be arranged to their own home as soon as possible and packages of support made available. The case manager is responsible for ensuring people are fully informed of the next steps and for arranging settle-in support where needed
• The NHS and councils should ensure there are enough common items of equipment to support people with longer-term care needs and access to such equipment is same day, every day of the week.
• Duties under the Mental Capacity Act apply and if a person is suspected to lack capacity to make decisions about their care, a mental capacity assessment should be carried out before a decision to discharge them is made.

What happened

10. Mr Y went into a care home in the middle of August 2020 after being in hospital following a stroke. Before being discharged from hospital, a nursing sister completed a ‘fact finding assessment.’ This set out a brief description of Mr Y’s care needs and was a notice that he was fit to be discharged from an acute hospital bed. It requested a D2A bed.
11. Mr Y was transferred to a care home. This was a short-term placement so that professionals could assess his long-term care needs. The hospital’s discharge letter noted he could not respond verbally, however he had smiled at staff and nodded his head.
12. There is no record of any contact from Ms X or attempts to contact her in August 2020. The Council’s records gave a friend as Mr Y’s next of kin. A social worker spoke to the friend on 14 August about the plan for Mr Y to have a short period in a care home. The social worker asked the friend to pass on his contact details to Ms X if she wanted to speak to the social worker.
13. The care home’s care plan said:
• Mr Y needed help from two care workers with changing position and he was not fully mobile with aids.
• Staff were using a turner to transfer him due to a swollen leg.
• He needed food and drink to be provided and prompting to eat and drink, help with taking medication, personal care and getting to the toilet.
• He was incontinent.
• He could not communicate by voice or by writing. He could answer simple questions by nodding his head, but staff would need to advocate for more complex decisions about his care.
• He used a profiling bed.
14. A ‘discharge from intermediate care’ care plan dated 20 August said Mr Y:
• Had variable capacity regarding consenting to care
• Needed two care workers to help with transfers and dressing
• Needed one care worker to assist with personal care
• Needed prompting with eating and drinking, food cutting up, supervision with meals,
• Was doubly incontinent and used pads
• Needed supervision when taking medicine
15. Records from the NHS integrated care team indicate a therapist saw Mr Y at the care home on 24 August. He could walk a very short distance with someone supporting him by holding his hand. He had the ability to understand simple instructions but could not express himself. The therapist recommended two care workers if Mr Y went home and noted social workers were establishing a discharge plan.
16. A social worker noted on 24 August that the plan was for Mr Y to be discharged on 28 August with a home care package. There was no mention of equipment.
17. A different social worker telephoned Mr Y’s friend on 27 August to discuss Mr Y’s discharge home later that day. The phone went to voicemail. Ms X then contacted the social worker and said she would be going over to Mr Y’s home and would bring some shopping.
18. Mr Y was discharged to his home on 27 August. Neither the NHS integrated care team nor the social work team had checked his home to see if it was suitable for him and there was no equipment in place for him, and equipment could not be provided immediately. So Mr Y went back to the care home on the same day.
19. The integrated care team’s records noted a therapist spoke with Mr Y’s social worker on 1 September about the failed discharge home. The social worker had been on annual leave the week before. The note said
20. “TC [Telephone Call] with [social worker].She [the social worker] was requesting more information re what had happened last week as she had not intended for him to be discharged. I explained that during MDT [multi-disciplinary team meeting] on Monday we had informed [another social worker] that patient did not require a rehab bed…… but that the social worker needed to establish what the discharge plan was (placement or home) and we would support accordingly. Unfortunately there had been no further communication with us or the speech and language therapy team and patient was discharged…….. [the social worker] advised that on their system there was a note stating that equipment was being delivered and patient was to return home. I advised that we had not been informed of this and had not ordered any equipment. Also advised that social worker needed to link in with [the speech and language therapist] for discharge planning….”
21. Mr Y’s speech and language therapist emailed the social worker at the start of September and said he had a severe language impairment due to his stroke and in her view he lacked mental capacity to make decisions about his care. He could not communicate his wishes. The social worker carried out a formal assessment of Mr Y’s capacity around care decisions and the outcome was he lacked capacity. The social worker went on to arrange consultation with Ms X and other family members about Mr Y’s future care needs. He has since moved to a permanent care home.
22. The Council’s response to Mrs X’s complaint said:
• It acted in line with the time frames in COVID-19 hospital discharge guidance. This was to avoid any delays in beds being freed up for new patents. The case notes say she agreed to be at home when Mr Y arrived.
• He was transferred to the care home from hospital. There was no plan for him to return home while he was in hospital. The ward carried out an assessment while Mr Y was in hospital and this identified that he could be discharged from hospital into a D2A bed for a period of further assessment.
• A social worker spoke to the friend who was listed on the assessment form as Mr Y’s contact and explained the plan to the friend. The friend said they would update her (Ms X)
• Mr Y told the social worker he wanted to go home. The social worker referred him to the NHS therapy team to complete a mobility assessment. The therapy team assessed him and decided he was safe to walk with two carer workers as long as there was a care package in place of two care workers, four times a day. Mr Y agreed to this and there was no reason to doubt his mental capacity to decide on his care.
• The NHS therapy team was responsible for checking the right equipment was in place at home, not the Council.
• There was a lack of communication and information by professionals. As a result of her complaint, the hospital social work team had been advised that they needed to make every effort to consult with people and their representatives.

Was there fault?

23. The Local Government and Social Care Ombudsman has no power to investigate the NHS services involved in Mr Y’s discharge planning. My findings relate to the Council’s involvement in Mr Y’s care only. The Council was at fault because:
• The records noted more than once that Mr Y could not speak or write due to his stroke and the integrated care (NHS) record said he had variable capacity to consent to care. His communication was noted to be severely impaired. There was reason to doubt Mr Y’s mental capacity to make decisions about short and long-term care. The discharge guidance makes it clear that the Mental Capacity Act applied during COVID-19. So there should have been an assessment of Mr Y’s mental capacity to decide to go home.
• The social workers involved with Mr Y should have liaised with the NHS team responsible for equipment to ensure Mr Y had the necessary equipment in his home in readiness for his arrival.
24. The Council has already acknowledged in its complaint response that it should have made better attempts to liaise with Ms X. I agree. While Mr Y had given a friend as his contact, the social care team was aware of Ms X because a social worker noted he had told the friend Ms X could call if she wanted to discuss matters. Officers should have made more attempts to establish direct contact with Ms X earlier on in the discharge process, subject to Mr Y’s consent.
25. Turning to the issue of Ms X receiving little notice of Mr Y’s discharge from the care home, I do not uphold this part of the complaint because the hospital discharge guidance is clear that both acute and community beds needed to be freed up rapidly to ensure capacity. This meant that relatives were often only given one to three hours’ notice that people were going home.

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Agreed action

26. The failure to assess Mr Y’s mental capacity and to liaise with the NHS about equipment and with Ms X caused avoidable distress. The Council will apologise for its failings within one month of this statement.
27. The Council has already instructed staff to ensure they make reasonable attempts to consult with relatives. This is an appropriate action to minimise the chance of recurrence.

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Final decision

28. There was fault in discharge planning and communication. The Council will apologise for the avoidable distress to Ms X and Mr Y.
29. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman