Decision Date: 24 June 2024
Summary
Knowsley Metropolitan Borough Council was found to be at fault for not involving Mr X adequately in the decision to discharge his mother from hospital to her home and then from hospital again, ultimately into an intermediate care placement in first a nursing home and then a residential care home.
What happened
Mrs Y had been living with her son, who held Lasting Power of Attorney (LPA) for her health and welfare and for her finance and property affairs.
Mrs Y was falling a good deal, and was hospitalised in September 2022. She was discharged to Care Home A, for free reablement, where she was given a care needs assessment by a social worker. An occupational therapist also visited Mrs Y and assessed her home environment, noting that Mrs Y would benefit from support. The social worker recommended that Mrs Y receive care at home each day. Following her return home, however, Mrs Y cancelled the care package.
In October 2022 she fell at home again and was returned to hospital. At the hospital, a GP-led multidisciplinary team concluded that Mrs Y could receive appropriate rehabilitation in her own home. In conversations with Mrs Y’s social worker, Mr X expressed concern about her getting in and out of bed and stressed that he thought that she needed further rehabilitation support. He also told the social worker that ward staff had said to him that Mrs Y was not in fact ready for discharge.
After a two-day stay in a rehabilitation bed in mid-November 2022, the hospital moved Mrs Y back to a ward. After she returned to the ward, Mrs Y’s social worker told Mr X that Mrs Y was ready to be discharged to her home with carers. Mr X was concerned and raised this with the Council. He believed that Mrs Y was not yet able to bear weight and that the hospital advised him it was waiting for an intermediate care bed. He raised this inconsistency because he believed that Mrs Y’s premature discharge could have had serious consequences.
In their response to Mr X, the Council confirmed Mrs Y had been referred for intermediate care by hospital therapists but that this option had been declined by the multidisciplinary team, and that it was hospital staff (not the social worker), who determined Mrs Y was medically fit for discharge and in whom they had confidence. The Council said it could arrange for a different social worker to support Mrs Y. The Council also told Mr X that they understood that Mrs Y was currently not medically fit for discharge and promised that discussions would take place once she was.
In late November 2022, Mrs X was accepted for an intermediate care bed in a nursing home.
The next month her social worker determined that she lacked the mental capacity to make decisions about her long-term care needs, as she was no longer able to retain and weigh up information to make an informed decision. In January 2023, the social worker and two intermediate care therapists met with Mr X to discuss Mrs Y’s long-term needs. Mr X was advised that his mother would need the support of two staff members and was at high risk of falling. The social worker said that Mrs Y would receive four care calls a day, and that the package would be chargeable. At the time Mrs Y was assessed to pay a contribution towards her care package. Mr X said she would not want to pay and would cancel the care. The social worker explained if Mrs Y remained at the nursing home the bed could become chargeable. The social worker advised that as Mrs Y did not have the capacity to make a decision it would be for him as her LPA to do so. Mr X also said he would cancel the care.
Following the conversation with his mother’s social worker, Mr X contacted the Council to air his concerns. They responded that it was in Mrs Y’s best interests to receive a certain level of care, that if Mr X thought differently this would not be in her best interests, and that the Council would have to seek further advice.
In February 2023 the social worker and therapist visited Mrs Y to explain various care scenarios and their financial implications. Mrs Y said that she wanted to speak with her son.
Mr X and Mrs Y then met with the social worker, an occupational therapist, intermediate care therapists, the care home matron and a Council-manager to discuss discharge planning. Mrs Y expressed a desire to return home, so long as she could do so safely, and that she wanted to use the upstairs bathroom. It was agreed that Mrs Y would receive two weeks of therapy to improve her mobility and then there would be a second meeting to review Mrs Y’s care. At a subsequent mental capacity assessment in March 2023, the social worker concluded that Mrs Y did not have the mental capacity to decide where she should live, and so arranged a Best Interests meeting to discuss her discharge options. Mr X consulted with other family members.
The Council assessed Mrs Y’s care needs again in April 2023. The assessment concluded that Mrs Y still required assistance from two support workers and that she should also be supported to complete physical therapy exercises, including a chair-based exercise programme. It concluded that she be admitted short-term to a care home with a view to a long-term placement. The care support plan was then sent to another residential care home, Care Home B, to consider whether it could meet her needs.
Mrs Y moved into Care Home B in early May 2023. While she settled in well, after six days she was admitted to hospital with chest pains.
Later that month the social worker informed Mr X that Mrs Y was fit for discharge. Her discharge letter stated that ‘bed-based exercises [were] to be completed’, as well as ‘exercises which needed to be completed with support.’ However, the care home said that it received no documentation requiring her to do exercises when she arrived at the care home, only once she had returned after being hospitalised. The hospital OT said that the exercises did not have to be done daily. Mr X got the consultant to put in a letter that the exercises should be done on a daily basis. Mrs Y was reluctant to do the exercises and would refuse, or say it was too uncomfortable to do so.
Mrs Y was admitted to the hospital again in September 2023 before being discharged to a nursing home where she died in October 2023. Following her death, Mr X made a complaint to the Ombudsman about the care his mother had received. Mr X was unsatisfied with several aspects of the care provided by the Council. Specifically, he complained that the Council:
– Discharged his mother from a rehabilitation care home in September 2022 without first discussing it with him or even inviting him to the discharge meeting. As a result, she was discharged prematurely, which in Mr X’s view resulted in a further fall and hospital admission.
– Attempted to discharge his mother from an intermediate care bed in a care home in early January 2023 without addressing his concerns. Instead, the Council claimed he was not acting in his mother’s best interests and threatened to challenge his Lasting Power of Attorney (LPA) status, which he found distressing.
– Failed to ensure that the Council-commissioned care home into which Mrs Y was admitted ensured that she completed her care plan physical therapy regime, resulting in an increased blood clot risk and further hospitalisation.
– Incorrectly informed Mrs Y that she would need to sell her house to fund her care home placement during discussions about how her care would be financed.
What was found:
On Mrs Y being discharged prematurely to her home, the Investigator found no fault. However, the failure to consult Mr X was a fault. Mr X was offered no carer’s assessment.
Given Mr X provided a significant amount of support to Mrs Y the Council should have consulted him and ensured he was able and willing to continue to support Mrs Y.
However, the records show the social worker advised Mr X of Mrs Y’s discharge date and there was no evidence that he raised concerns at the time about the assessment or care package or that he was unwilling to support Mrs Y. Mrs Y’s fall and readmission to hospital could not be linked to the Council’s actions.
On the Council’s decision to discharge Mrs Y to intermediate care and the assessment of her long-term care needs, the Investigator found no fault. The initial decision to discharge Mrs Y home after her fall in October 2022 was taken by the hospital and the worker’s actions were based on what they understood to be the position at that time. Mrs Y’s desire to go home meant it was appropriate for the Council to explore that option fully, despite Mr X’s concerns. The Council were also not at fault for keeping Mr X informed and impressing upon him that they had to act in Mrs Y’s best interests, and what action they could take if he disagreed.
The Council-commissioned care home’s failure to encourage Mrs Y to promptly carry out her required exercises amounted to a fault. Care Home B said it received no information about the exercises in the pre-admission assessment from the nursing home where she was receiving intermediate care. However, records show the Council sent the plan to Care Home B in April 2023. However, other aspects of the provision of physical therapy which Mr X complained about, such as how it was delivered following her admission and eventual discharge to hospital for chest pains, did not amount to a fault. Mrs Y’s ability to complete them was discussed with Mr X, and the Council’s decision to seek clarification from Mrs Y’s consultant following her discharge on how often the exercises should be completed each day was an appropriate one.
Mr X also complained about Mrs Y being upset by discussions about financing her care. The records show that the social worker did inform Mrs Y that her capital may be taken into account in any financial assessment, including her house. While this might have been upsetting, Councils are entitled to charge for care and support services. Furthermore, it was important that Council staff ensure that service users understand the financial consequences of any care package.
In response to the Investigator’s report, the Council agreed to:
– Apologise to Mr X to acknowledge the frustration and uncertainty caused by the delay, by failing to involve him in Mrs Y’s needs assessment and failing to ensure Mrs Y carry out her exercises.
– Remind relevant staff that carers providing a significant level of care should be involved in the needs assessment process and be offered a carer assessment.
– Take action to ensure Care Home B reviews its admission and assessment practices to ensure that it properly considers an individual’s needs as set out in the care plan.
Points to note for councils, professionals, people using services and their carers, advocacy groups, and members of the public:
While there were some findings of fault by the Investigator in this complaint, much of the behaviour complained about was simply the Council relaying information from hospital treatment teams, Occupational or Physical Therapy teams, or simply relaying essential information about how care packages are funded.
As noted by the Investigator, some of this information may indeed have been distressing, but was necessary to communicate and did not amount to a fault. To our eye, Mr X’s concerns were more likely to have been exacerbated by his lack of understanding of how the adult social care legal framework works and the differences in hospital discharge that have been brought about by DHSC diktat through promotion of Discharge to Assess policy, since the Covid era.
The wholly open and ambiguous framework for which duties are owed to whom regarding hospital discharge means that every aspect of the decision-making needs to be broken down into stages: it is of course down to a clinician to determine when a person is fit for discharge, because a hospital can be sued for negligence if the discharge is premature. But a social worker may or may not be in charge of shaping a care plan by way of response to the person reaching that point, because Discharge to Assess Policy allows for hospitals to discharge people to interim (sometimes called intermediate) care beds, pending a decision as to their longer term care, and that is not done under the Care Act but under the NHS Act, 2006.
In appropriate arrangements for discharge cannot be put down to the council if the council has just been the information conduit. One can tell that the discharge to the care home after the second fall covered in this report, in October 2022, was an NHS discharge because the report says this: “The hospital, not the Council, then arranged a rehabilitation bed for Mrs Y from which she was readmitted to a hospital ward shortly afterwards.” And the second period of intermediate care was for a period of some weeks and was also free – although it could have become chargeable. There is absolutely no hope of an ordinary person being able to figure out which organisation is liable for the care at any given moment if it can be free from the NHS OR the council, and organised BY the NHS OR the council, and called rehab, or interim or intermediate care interchangeably by those IN the know, and those who are just using language loosely.
We think that this report is a good example of the kind of chaos that can ensue when nobody is being clear with members of the public. Their expectations can become unrealistic; Mr X seems to have wanted the responsibility of Power of Attorney and involved carer but informed staff he would cancel the care using his authority, for which no reasoning is set out, and which is not obviously consistent with operating in his mother’s best interests. One gets the impression that despite there being no mention of any invoice for actual charges, in the report, meaning that Mrs Y received over 8 months of care, for free, Mr X may have been hoping for a finding of CHC status, because it is referenced in the LGSCO report, but without any further detail being given.
None of this is to detract from the fact that it was not acceptable for the Council to omit including Mr X in the decision to discharge his mother home, particularly because he was delivering so much of her care himself – he was a carer, if any of these discharges were Care Act discharges by the council and now NHS guidance from NHS England is to the effect that chosen carers must be involved by Hospital Staff engaged in hospital discharge too.
This is a report where the lack of experience of the LGSCO’s investigator in dissecting exactly which organisation, in an integrated system, was responsible for which bits of the discharge process, shines forth, in our view, and also in terms of sitting on the fence about what councils should do with a welfare Power of Attorney holder’s refusal of consent to move the person – which should lead to consequences, whether for charges or for Court of Protection proceedings.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Knowsley Metropolitan Borough Council (23 008 737) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community when posted.
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