Summary: We consider London Borough of Lewisham and Lewisham and Greenwich NHS Trust did not appropriately seek the views of Mrs Y’s supported accommodation before deciding she could not return there from hospital. Also, the Council did not carry out a Mental Capacity Act assessment and best interest decision in line with the relevant guidance. That caused Mrs Y’s son, Mr D, uncertainty. The Council and Trust should apologise and make a symbolic payment to Mr D to recognise his injustice. They should also carry out service improvements.

The complaint

1. Mr D complains on behalf of his mother, Mrs Y (deceased), about London Borough of Lewisham (the Council) and Lewisham and Greenwich NHS Trust (the Trust). He says the Council and Trust missed the opportunity to consider discharging Mrs Y back to her supported accommodation with community support. Also, they did not involve him in the decision to discharge his mother to a nursing home from hospital.
2. Mr D says his mother had to pay more for her care at the nursing home. She also physically and mentally deteriorated. Mr D says he has suffered time and trouble, frustration and found it hard to watch Mrs Y deteriorate. He would like the organisations to review their discharge policies to ensure they involve families more. Also, they should contribute toward his mother’s increased care costs.

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The Ombudsmen’s role and powers

3. 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).
4. When investigating complaints, if there is a conflict of evidence, we 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. 
5. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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

6. I read the papers submitted by Mr D and discussed the complaint with him.
7. I considered the Council and Trust’s comments about the complaint and the supporting documents it provided.
8. Mr D and the organisations had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Discharge to Assess

9. National guidance called ‘Hospital Discharge Service: Policy and Operating Model’ was in place for hospitals, councils and social care providers in January 2022. It said hospitals should follow a “discharge to assess” model consisting of four pathways, 0-3 and using a “trusted assessment” model where one person or team carries out health and social care assessments on behalf of multiple organisations. Pathway 3 applied to people who required ongoing 24‑hour nursing care on a long-term basis, often in a bed-based setting.
10. Section 3.3 of the guidance said: “Before discharge a determination must be made about the status and views of any carers who provide care, including that they are willing and able to do so”.
11. Section 4.1 of the guidance says: “People should expect to receive high quality personalised care including regular updates – for them or their representative or advocate if they lack capacity to decide – and sharing information about the next steps in their care and treatment”.

Mental Capacity Act and Best Interest Decisions

12. 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.
13. 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.
14. 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.
15. Section 4.61 of The Code states: “It is good practice for professionals to carry out a proper assessment of a person’s capacity to make particular decisions and to record the findings in the relevant professional records.”
16. Section 5.15 of The Code states: “Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision”.
17. Section 5.49 of the Code states: “The Act places a duty of the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interests”. This includes close relatives and lasting powers of attorneys.

Background

18. Mrs Y lived in supported accommodation and suffered with dementia.
19. On 19 January 2022, the Trust admitted Mrs Y following recurrent infections and because she had stopped taking food and fluids.
20. Two days later, the Trust told Mr D his mother was stable. Mr D asked the Trust to meet with his mother’s supported accommodation to discuss her discharge. The Trust said if Mrs Y could not return to the supported accommodation, she would most likely move to a nursing home.
21. On 24 January, Trust staff met to discuss Mrs Y’s discharge. The Discharge Team said they had spoken with the supported accommodation and Mrs Y could not return there. The supported accommodation could not meet her increased sudden confusion. As Mrs Y was medically stable, it agreed to discharge her to a nursing home under the Discharge to Assess pathway.
22. Three days later, a Social Worker spoke with Mr D. Mr D said the Trust had not updated him on what would happen next. The Social Worker told Mr D the supported accommodation would not accept Mrs Y back because it could not support her increased needs. The Trust suggested Mrs Y needed a nursing placement and would discharge her under the Discharge to Assess pathway. The Social Worker then said: “Then if [Mrs Y] is deemed to lack capacity to make decision they will liaised [sic] with the family in the process and a best interest meeting/decision will be made”.
23. On 2 February, the Trust told Mr D a Hospital Social Worker would assess Mrs Y’s capacity to make decisions about discharge.
24. The next day, the Hospital Social Worker reviewed Mrs Y. He decided she could not decide where to move on discharge. So, he recommended discharging Mrs Y to a nursing home, where the Council and Continuing Healthcare Team would robustly assess her care and support needs. The Council started its search for nursing homes.
25. On 4 February, the Trust told Mr D about the Hospital Social Worker’s decision, and the Council was searching for nursing homes for Mrs Y.
26. On 7 February, Mr D called the Council to discuss nursing homes. Three days later, the Council emailed Mr D and advised him which nursing home Mrs Y would move to. The Council also confirmed the Trust would arrange her transport.
27. Over the next few days, the Trust called the nursing home to arrange Mrs Y’s discharge but could not speak to anyone. On 15 February, the Council confirmed the Trust’s plan to discharge Mrs Y to the nursing home that morning. Mr D said had spoken to the nursing home and would visit her later that day.
28. Between February and June 2023, the Trust investigated Mr D’s complaint about the discharge. Mr D was unhappy with its response. He said Mrs Y’s supported accommodation had told him the Trust and Council did not contact them during the discharge.
29. In September 2023, the Trust referred Mr D to approach the Ombudsman, which he did a month later.

Analysis

The Trust’s recommendation for a nursing placement

30. Mr D disputes that Mrs Y’s supported accommodation told the Trust it would not allow her to return.
31. I have reviewed the Trust’s medical and discharge records.
32. From 21 January 2022, the Trust’s Discharge Team said the supported accommodation would not accept Mrs Y back because of her increased confusion. But I have not seen a written record of that conversation.
33. The Trust’s records at times are also contradictory. On 24 January a doctor recorded needing to understand why the supported accommodation cannot accept Mrs Y. Then on 25 and 26 January, staff wanted to check if the supported accommodation could still accept Mrs Y.
34. It is unclear where the Discharge Team understood the supported accommodation could not accept Mrs Y. I cannot say how they reached that view.
35. The evidence above suggested the Trust spoke to the supported accommodation before deciding Mrs Y needed a nursing placement.
36. However, Mr D has shared an email from the supported accommodation in June 2023. That email said: “At the time of her hospital admission, [the supported accommodation] fully expected your mum to be discharged back to us. We had no communication with the hospital regarding her status or fitness to come back to [the supported accommodation]. We were not part of any discharge meetings/discussions. neither did we receive any email updates regarding her treatment or to ask us any questions as to whether we could continue managing her care needs… as I said we received no communication from the hospital as to what plans were going to be in place.”
37. The Trust and supported accommodation disagree about what happened. I must decide what most likely happened. I consider, on the balance of probabilities, the Trust did not contact the supported accommodation about Mrs Y.
38. I am more persuaded by the supported accommodation’s version of events. I understand it sent its response 18 months after the event. But it most likely checked its own records to see what contact it had from the Trust or Council in 2021. Combined with the Trust’s lack of, and inconsistent records, it leads me to consider the conversation most likely did not happen.
39. Therefore, I consider the Trust acted with fault by not consulting the supported accommodation before it discharged Mrs Y. That was fault, and not in line with the Discharge to Assess guidance.
40. However, I cannot say, even on the balance of probabilities, if the outcome would have been different for Mrs Y. I understand the supported accommodation expected Mrs Y back from hospital. But after reviewing Mrs Y’s increased needs, I cannot say if it would have accepted her back or not (with or without community support). That was a missed opportunity. It leaves Mr D uncertain if his mother could have returned to the supported accommodation.

The Council’s assessment of Mrs Y

41. Following the Trust’s decision to discharge Mrs Y under the Discharge to Assess pathway, the Council’s Social Worker relied on the Trust’s view that the supported accommodation could not accept Mrs Y. At that time, Mr D was hoping she could return to the supported accommodation.
42. I understand the Trust had asked the Council to consider a nursing placement for Mrs Y. However, I consider the Council missed an opportunity to speak with the supported accommodation before deciding she needed a nursing placement. Especially considering there was no written evidence anyone had already done so. That was fault.
43. The Code is clear what steps staff need to take when someone cannot make certain decisions, and what would be in that person’s best interests. It is best practice to record any assessment of capacity, and to record that in the person’s care records.
44. I have reviewed the Hospital Social Worker’s assessment on 3 February.
45. The decision to discharge Mrs Y to the nursing home was significant. The Hospital Social Worker should have completed a robust assessment of Mrs Y’s capacity and a best interest decision. Their assessment focussed more on Mrs Y’s mobility and need for practical support, rather than her capacity to make decisions. I am not persuaded the Hospital Social Worker carried out (or documented) a robust test of Mrs Y’s capacity in line with the Code. That was also fault.
46. I consider the faults above have caused Mr D uncertainty, at not knowing if Mrs Y could have returned to the supported accommodation.

Involving Mr D in the discharge

47. I have reviewed the period between 27 January and 15 February to see how the Council involved Mr D in Mrs Y’s discharge plan.
48. The Code is also clear about the importance of involving close relatives and lasting powers of attorneys in best interest decisions.
49. On 27 January 2022, the Social Worker told Mr D he would be involved in that decision. That was important because Mr D was Mrs Y’s lasting power of attorney for health and welfare. But I have not seen any evidence the Hospital Social Worker sought Mr D’s views as part of their assessment and best interest decision on 3 February. That was not in line with the Code, which again was fault. That would have been frustrating for Mr D. There is evidence he repeatedly asked the Council and Trust to consider discharging Mrs Y back to the supported accommodation.
50. Following 3 February decision, the Council and Trust should have kept Mr D updated about the discharge plan.
51. I have seen evidence that on 7 February the Council spoke to Mr D about placement choices during a phone call. Then the Council confirmed the plan to discharge Mrs Y to the nursing home on 10 February. That was good practice.
52. From 10 February, the Trust was responsible for coordinating the discharge. I do not consider the Trust caused the delay between 10 and 15 February. Its records show it chased the nursing home but could not speak to anyone about discharge. However, I am not persuaded the Trust appropriately updated Mr D then. That was fault, which would have caused Mr D frustration.

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Agreed actions

53. Within four weeks of this decision:
• The Council and Trust should both apologise to Mr D for the uncertainty caused by not speaking with Mrs Y’s supported accommodation before deciding she needed a nursing placement.
• The Council should apologise to Mr D for the further uncertainty caused by its poor assessment of Mrs Y’s capacity, and not involving him in the best interest decision.
• The Trust should apologise to Mr D for not updating Mr D in the week before it discharged Mrs Y.
• Each organisation should pay Mr D £250 to recognise the impact to him.
54. Within eight weeks of this decision, the Trust should review its local discharge policy so:
• It seeks information from those involved in the patient’s care before the admission to support the discharge process.
• It keeps family members (and lasting powers of attorney for health and welfare) updated during the discharge process.
55. Within eight weeks of this decision, the Council should ensure relevant staff are aware of the importance of considering the Code when completing MCA assessments and best interest decisions. That includes involving relatives and lasting powers of attorneys, where necessary.
56. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

57. The Trust and Council did not appropriately seek the views of Mrs Y’s supported accommodation before deciding she could not return there from hospital.
58. The Council did not carry out a Mental Capacity Act assessment and best interest decision in line with the relevant guidance.
59. Also, the Trust did not appropriately update Mr D about Mrs Y’s discharge.

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Investigator's decision on behalf of the Ombudsman