Summary: We will not investigate Mr and Mrs X’s complaint about the way Mrs X’s brother, Mr Y, was discharged from hospital by Bradford Teaching Hospitals NHS Foundation Trust and City of Bradford Metropolitan District Council. The Trust has already accepted some errors and taken appropriate steps to put things right. Further investigation by the Ombudsmen is unlikely to add to the Trust’s investigation.

The complaint

1. Mr and Mrs X complain on behalf of Mrs X’s late brother, Mr Y. Mr and Mrs X complain about the way Mr Y was discharged from hospital in April 2023 by Bradford Teaching Hospitals NHS Foundation Trust (the Trust) and City of Bradford Metropolitan District Council (the Council). Mr and Mrs X had concerns about the decision to discharge Mr Y home and whether he had mental capacity to make this decision. Mr and Mrs X say they were not properly involved in the discharge planning and were not notified of Mr Y’s discharge.
2. Mr and Mrs X also complain about poor inpatient care by the Trust. They say Mr Y arrived at a hospice with pressure sores and urinary retention.
3. As a result, Mr and Mrs X say Mr Y’s health was impacted. Mrs X has found the last year distressing.
4. Mr and Mrs X would like to know why this happened. They would also like a financial remedy.

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The Ombudsmen’s role and powers

5. 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).
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I have spoken with Mr X and considered the information he provided. I have also considered Mr Y’s medical records. I shared my draft decision with Mr and Mrs X and carefully considered the comments I received.

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What I found

What happened

8. Mr Y lived by himself. He was diagnosed with lung cancer.
9. In late March 2023, Mr Y was admitted to Bradford Royal Infirmary with shortness of breath. The Trust decided Mr Y was not fit to undergo any further cancer treatment.
10. The hospital has a Multi-Agency Integrated Discharge Team (the discharge team) which is made up of health professionals from the Trust and social care professionals from the Council. The discharge team had several conversations with Mr and Mrs X and Mr Y about discharge arrangements. Mr Y wanted to be discharged home. Mr and Mrs X were concerned Mr Y’s home environment was not appropriate, and he may not be safe there.
11. Mr Y was sometimes confused while in hospital and there were some questions about his mental capacity. Mental capacity is the ability to make an informed decision based on understanding a situation, the options available, and the consequences of the decision. Mr Y had three capacity assessments in relation to his discharge arrangements. Two assessments found he did not have capacity to make this decision. The assessment shortly before discharge found Mr Y did have capacity.
12. The Trust’s records say Mrs X agreed to Mr Y returning home with extra care visits in place to support him. Mrs X disputes she agreed to this. Home carers were arranged to visit Mr Y three times a day, with a plan to then review Mr Y’s care to see how he was managing at home.
13. In late April 2023, Mr Y was discharged home. Mrs X was not informed of the discharge date. On arrival, there was some confusion about the location of Mr Y’s key, so he could not access his home. Mr Y’s breathing deteriorated, and he was returned to hospital.
14. Mr Y stayed in hospital for two more days. During further discussions around discharge, Mr Y agreed to move to a hospice.
15. Mr Y died a few days after moving to the hospice.

Analysis

Mr Y’s discharge location

16. Mr and Mrs X complain Mr Y was unsafe to be discharged home. They have concerns around Mr Y’s capacity to make decisions regarding his discharge.
17. Deciding on appropriate discharge arrangements can be a delicate balance between a person’s needs, their wishes and the views of their family.
18. Mr Y’s capacity was carefully considered on several occasions. From the records, it appears Mr Y had fluctuating capacity. Mr Y was consistent in his view that he wished to return home, although he sometimes lacked the ability to retain the relevant information to make this decision. At other times, professionals considered that he was more lucid and had mental capacity to decide his discharge arrangements.
19. 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. 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.
20. Mental capacity assessments are also time and decision specific. This means assessments consider a person’s ability to make a specific decision at the time the decision needs to be made. Someone may lack capacity at one point in time but be able to make the same decision at a different time. It is possible for a person to have different outcomes to capacity assessments about the same decision. This does not necessarily indicate fault.
21. A key principle of the Mental Capacity Act 2005 is that any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker has to consider if there is a less restrictive choice available that can achieve the same outcome. The discharge team’s decision to offer Mr Y the opportunity to see if he could manage at home with extra support appears to be in line with this.
22. On one occasion, Mr Y’s mental capacity assessment was not recorded in the Trust’s standard format. The Trust has acknowledged this and taken steps with staff ensure capacity assessments are always recorded in its formal format. There is no set format for how capacity assessment must be recorded, this is for individual organisations to decide.
23. Overall, it is unlikely an investigation would find fault with the way the Trust and the Council carried out the decision around Mr Y’s discharge location.
24. I also note Mr Y’s discharge arrangements remained the same, regardless of whether he was considered to have capacity. The plan was always to discharge him home with extra care visits, then to review how he managed. Mr Y’s capacity does not appear to have directly impacted on this decision.
25. The Trust’s records show it considered Mrs X’s concerns and discussed these with her and Mr Y on several occasions. The Trust records say Mrs X agreed to the plan for Mr Y to be discharged home, despite having ongoing concerns.
26. Mrs X disputes that she agreed with Mr Y’s returning home. This conflicts with the Trust’s records, which notes Mrs X’s agreement on several occasions. Further investigation by us would be unlikely to resolve this point.

Communication with Mr and Mrs X

27. I have reviewed the Trust’s complaint responses. The Trust has accepted there was poor communication with Mr Y’s family, including failure to notify Mrs X of Mr Y’s discharge date. The Trust has apologised to Mrs X and said it is working on communication between discharge teams to reduce communication gaps.
28. Trust has agreed a discharge meeting should have been offered to discuss Mrs X’s concerns. The Trust has made improvements to ensure discharge meetings are offered where there are concerns to agree a discharge plan.
29. The Trust has already accepted things went wrong and has put appropriate steps in place to address this. Further investigation by us is unlikely to achieve more.

Impact of discharge on Mr Y’s health

30. Mr Y’s inpatient records suggest he was well prior to discharge, with good oxygen levels and no need for supplementary oxygen. An oncologist had seen Mr Y two days before discharge and was satisfied he was fit to go home. Mr Y was reviewed by a dietician and physiotherapist in hospital. The Trust also made a referral to the Council safeguarding team in relation to Mrs X’s concerns about the safety of Mr Y’s home. I have seen nothing to suggest that Mr Y was unfit for discharge on the morning he returned home.
31. I acknowledge Mr Y’s breathing deteriorated while there were attempts to access his home. However, I have seen nothing to suggest the Trust could have predicted Mr Y’s oxygen levels would reduce significantly on discharge. I appreciate it was distressing for Mrs X to witness Mr Y’s breathing difficulties. However, an investigation would be unlikely to find that professionals could or should have predicted this deterioration would happen so quickly after Mr Y left hospital.
32. I note Mr Y lived very close to the hospital and was only away from the ward for approximately an hour. During this time, he was supervised by an ambulance crew who appropriately returned him to hospital to receive treatment for his breathing. As such, there appears to be limited injustice to Mr Y as a result of the decision to discharge him home. I accept Mr Y’s breathing difficulties would have been unpleasant for him, however we would be unlikely to find whether this decline was caused by his return home.
33. Mrs X feels there are outstanding questions about Mr Y’s discharge. Mr and Mrs X say they want to know why this happened. The Trust has already provided Mr and Mrs X with detailed responses, which appear to be accurate according to the records I have seen. The Trust has also accepted where things have gone wrong. The Trust has apologised to Mr and Mrs X and made systemic changes. Mr Y has died and we are unable to remedy any injustice to him.
34. Having reviewed the Trust records, any further investigation by us is unlikely to add to the Trust’s complaint response. The actions already taken by the Trust are in line with what we would be likely to recommend and we are unlikely to achieve more. I acknowledge Mr and Mrs X are also seeking a financial remedy, however we would not investigate on these grounds only.

Mr Y’s inpatient care

35. Mr and Mrs X complain about the inpatient care provided by the Trust. Specifically, they complain Mr Y arrived at the hospice with pressure sores and the Trust had not identified he was retaining urine.
36. Having reviewed Mr Y’s medical records, these support the information provided in the Trust’s complaint responses.
37. The Trust had flagged Mr Y as at risk of pressure damage. As a result, Mr Y was placed on a pressure relieving foam mattress. It was noted that Mr Y was able to reposition himself, therefore staff did not need to reposition him. Regular skin checks were carried out which showed some areas of Mr Y’s skin were ‘red and blanching, but not broken’. This includes the days leading up to Mr Y’s discharge to the hospice. Mr Y declined a skin check the day before he moved to the hospice, so there is no record of his skin for this specific date.
38. Unfortunately, skin damage from moisture lesions can occur rapidly, particularly when a person is incontinent. This cannot always be avoided, even when care is appropriate. I have found no indication of fault which would warrant an investigation.
39. The Trust says Mr Y was regularly passing urine in hospital, including a record of urinating more than once on the day before he moved to the hospice. Mr Y’s inpatient records support this. Acute cases of urinary retention can occur suddenly and are not necessarily as a result of poor care. Again, there is insufficient evidence of fault to warrant investigation of this point.

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Final decision

40. There is no basis for the Ombudsmen to investigate the complaint. There is insufficient evidence of fault in relation to Mr Y’s in patient care or discharge destination. The Trust has already accepted communication errors surrounding Mr Y’s discharge. Further investigation by the Ombudsmen is unlikely to achieve any more than the Trust has already offered.

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Investigator's decision on behalf of the Ombudsman