Summary: Miss X complains about matters affecting her late aunt, Miss Y’s, discharge from hospital. We will not investigate this complaint. An investigation is unlikely to find fault in the discharge process or achieve the outcomes Miss X seeks.

The complaint

1. Miss X complains about London Borough of Sutton (the Council) and Epsom and St Helier University Hospital NHS Trust (the Trust). She complains about the following matters affecting her late aunt, Miss Y:
• flawed discharge from hospital in June 2021; and
• failure to review the outcome of the meeting where Miss Y’s discharge was discussed.
2. Miss X says Miss Y (and later her estate) suffered a financial loss because of the faults and Miss Y’s family suffered distress.
3. Miss X’s desired outcomes are:
• review the June 2021 discharge meeting;
• retrospective change to the outcome of the meeting to state Miss Y needed to be discharged to a nursing home;
• refund care home fees up to March 2022 to Miss Y’s estate; and
• change all relevant records and care bills to reflect this.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly 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 investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
6. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the bodies, or
• we cannot achieve the outcome someone wants.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I have considered:
• written information provided by Miss X, the Council and the Trust;
• copies of some of Miss Y’s health and social care records, provided to us by Miss X and the organisations;
• relevant law and guidance; and
• the Ombudsman’s Assessment Code.
9. Miss X has had an opportunity to comment on a draft version of this decision. I took her comments into account before reaching a final decision.

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What I found

Relevant law and guidance

Mental Capacity and Lasting Power of Attorney

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act is supported by the Code of Practice 2007.
11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more people to make decisions for them, when they become unable to do so themselves. The two types of LPA are:
• property and finance LPA; and
• health and welfare LPA.
12. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. When an attorney accepts their role they confirm they are willing to act under an LPA. This includes making decisions in the donor’s best interests.
13. Attorneys must always fulfil their responsibilities and duties to the donor. This includes:
• applying the same diligence to making decisions for the donor as they would to making decisions about their own life; and
• not delegating those decisions unless specifically authorised to do so. This means attorneys cannot usually ask someone else to make a decision they have been appointed to make.
14. Health and social care staff involved in the hospital discharge of a person who lacks capacity to decide on their discharge destination, must consult any welfare attorneys and get their agreement to a care plan. If an attorney disagrees, the attorney can arrange alternative care. Care professionals and attorneys should try to settle any disagreements between themselves. If that is not possible, they can apply to the Court of Protection for a decision.

Discharge to assess

15. The ‘discharge to assess’ (D2A) model for managing transfers of care, also known as ‘home first’ or ‘step down’, was introduced in NHS trusts in England in 2016. Under this model, patients’ ongoing care needs would usually be assessed in their own home or a community care facility, once they were medically fit to be discharged from hospital. This reduced delayed discharges from hospital. It also meant people’s care and support needs could be assessed in an environment that was more realistic than an acute hospital.
16. During the COVID-19 pandemic, the Government issued national hospital discharge guidance. This applied to hospitals and social care local authorities across England. The name of the guidance was ‘Hospital Discharge Service: Policy and Operating Model’. The version in force in June 2021 contained the following relevant information.
• People’s social care needs or eligibility for NHS Continuing Healthcare (CHC) funding should be assessed in the community and not in an acute hospital.
• The Government provided extra funding to help cover the cost of “post-discharge recovery and support services in addition to what was provided prior to admission, for up to six weeks” after hospital discharge. This was to allow for post-discharge recovery and assessments of ongoing care needs in the community. The funding was only for any care over and above the care the person was receiving before they went into hospital. If assessments were not completed within six weeks, the funding would continue until an assessment of ongoing care needs was completed.
• There were four D2A pathways, numbered 0 to 3. Pathway 0 was for people who could go home with no extra help. Pathway 1 was for people assessed as being able to return home with support from health and/or social care. Pathway 2 was for people assessed as needing temporary residential care. Pathway 3 was for people assessed as likely to need long-term nursing care. “Trusted assessment arrangements” should be used to decide the discharge pathway for each patient. This meant a single assessment, trusted by local health and social care services, to decide which pathway a patient should be discharged under.

Summary of what happened

17. Below is a summary of the key events and issues. It is not an exhaustive chronology.
18. Before her hospital admission in May 2021, Miss Y lived on her own. She had a diagnosis of dementia. Her family including Miss X gave her some support. This was limited as Miss X works and her mother Mrs X (who is Miss Y’s sister) is a full-time carer for Miss X’s father, Mr X. Miss Y also received social care support organised by the Council, in the form of visits by care workers.
19. Miss Y was admitted to the Trust’s hospital in May 2021, after a fall. By June 2021:
• Miss Y was medically fit for discharge;
• the Trust had assessed her as not having the mental capacity to decide about her discharge destination or future care needs;
• Miss X and Mrs X had lasting power of attorney (LPA) for Miss Y’s health, welfare and finances;
• the Trust was aware of the LPAs and considered Mrs X to be Miss Y’s ‘next of kin’; and
• an assessment dated 25 May 2021 decided Miss Y could be discharged under D2A Pathway 1, but her social care support at home should increase to include four visits a day from care workers and technology such as sensors.
20. The Trust and Council held a family meeting on 2 June 2021 at the hospital. According to the Trust’s note of the meeting, the Council’s view was Miss Y could go back to her own home, supported by four visits a day from care workers, and technology. Miss X says she and her parents disagreed with the Council, because they considered Miss Y would not be safe living on her own and should be discharged to a residential care home with nursing. The Trust’s record of the meeting indicates:
• the Council told Miss X and her mother Mrs X they were ultimately responsible for deciding on Miss Y’s discharge destination as they held LPAs; and
• the Trust agreed to call Mrs X or Miss X in the following days to hear their decision.
21. Two days later, the Trust called Mrs X. The Trust’s note of the call says Mrs X told the Trust the family had “decided patient should go home with [care worker visits] and door sensors etc. They have also said [a residential care home] will be doing an assessment”. The Trust told the Council this after the call. Miss X says the Trust should have called her rather than her mother, and she considers the Trust pressured Mrs X during the call. In mid-June, Miss X also asked the organisations to review the outcome of the meeting of 2 June 2021.
22. The residential care home found by the family assessed Miss Y and agreed it could meet her needs. Most of the communication about Miss Y’s discharge planning was between the Trust and Mrs X. The hospital discharged Miss Y to the care home in mid-June 2021. The Council considered this a private arrangement, made by Miss Y’s LPA holders and paid for by Miss Y.
23. Later in 2021 and in 2022, Miss X continued to correspond with the Council about the hospital discharge and disputed financial issues relating to Miss Y’s care home placement. Miss X’s position was Miss Y should have been discharged from hospital into a nursing home, and all fees should have been paid through COVID-19 discharge to assess (D2A) funding until Miss Y had a full needs assessment. The Council’s position was Miss Y would only have been entitled to COVID-19 D2A funding for any extra care she received in her own home, as its view at the time of the discharge was her needs could be met at home, and the family had made a choice under their LPAs to place her in residential care instead.
24. The Council assessed Miss Y’s long-term social care needs in late 2021, six months after she was discharged to the care home. It decided Miss Y should remain in residential care.
25. Miss Y died in late 2022. The solicitors dealing with Miss Y’s estate have confirmed to Miss X they are happy for her to complain about the issues she has brought to the Ombudsmen.

My analysis

26. The records provided by Miss X and the Council indicate the Trust and Council followed the law and guidance in place at the time of Miss Y’s discharge from hospital. This is because:
• a doctor assessed Miss Y’s ability to make her own decisions about discharge destination and future care;
• there was an assessment in keeping with the ‘trusted assessment’ model which considered which D2A Pathway Miss Y should be discharged on;
• the Council agreed to provide Miss Y with extra support in her own home based on the assessment’s recommendations. This extra support at home would have been free to Miss Y under the COVID-19 D2A funding for people discharged on Pathway 1 until her long term care needs were assessed;
• the Council and Trust organised a meeting with Miss Y’s family to discuss discharge planning and the professionals’ and attorneys’ differing views on where Miss Y should be discharged to;
• the Council correctly explained to Miss X and Mrs X that as attorneys, they needed to decide what to do next – accept the professionals’ recommendations or arrange alternative care they considered would be better; and
• Miss X and Mrs X could act jointly or separately as Miss Y’s attorneys. It was their preference for professionals to contact Miss X to discuss discharge issues. However, the Council and Trust could contact either or both of them.
27. Although Miss X disagrees with the professionals’ recommendations, we cannot question them without fault in the way the Council and Trust considered and made the recommendations. Nothing in the extensive records from Miss X indicates fault in the process the Council and Trust used to consider Miss Y’s needs and recommend Pathway 1. An investigation by us is unlikely to find evidence of fault in this process. This is because:
• it is unlikely we would find records that contradict those already provided by Miss X;
• more than three years have passed since Miss Y’s hospital discharge so people’s memories are unlikely to be reliable as evidence now; and
• while Miss Y was later assessed as needing to stay in residential care, this was nearly six months after the trusted assessment in hospital. Miss Y’s condition and needs could have changed in that time. We could not therefore conclude, even on the balance of probabilities, that the hospital trusted assessment was wrong because a later assessment came to a different conclusion.
28. Once Mrs X decided Miss Y should be discharged from hospital to a privately arranged care home, the Trust and Council were entitled to respect her decision as Miss Y’s attorney. However, this was not the pathway the professionals recommended for Miss Y’s hospital discharge, so she was not eligible for COVID-19 D2A funding for it. An investigation is therefore unlikely to achieve Miss X’s desired outcome of a refund of care fees.
29. The Trust has already agreed to amend some records or add Miss X’s comments to them. For all the reasons above, the Ombudsmen are unlikely to have grounds to recommend further changes or additions to records.

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Final decision

30. We will not investigate Miss X’s complaint about hospital discharge. An investigation by the Ombudsmen is unlikely to find fault in the discharge process or achieve the outcomes Miss X is looking for.

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Investigator's decision on behalf of the Ombudsman