Decision Date: 5 August 2024
Summary
Fault was found with the Calderdale & Huddersfield NHS Foundation Trust and Calderdale Metropolitan Borough Council in respect of their discharge of a patient. In mishandling their assessment of the patient (Mrs X) they put her at risk and caused distress to her daughter.
The Trust failed to recognise the patient’s ability to make her own decisions, did not obtain consent to share information with family members and omitted to arrange appropriate post-discharge care.
What happened
Mrs X was hospitalised after a fall, broke her leg, and developed a UTI in hospital. About a fortnight after her fall, she was ready for hospital discharge.
The Trust and Council say Mrs X agreed to go into residential care and could make her own decisions about this. The staff in question felt that her UTI and delirium was only temporary and that she was as entitled as anyone else to the presumption of capacity.
Ms D complained that the Trust and Council failed to:
- properly assess Mrs X’s ability to decide on where she should be discharged to;
- correctly decide she could make this decision;
- take into account the preferences of Mr X and Ms D;
- communicate properly with the care home;
- supervise Mrs X’s taking of medication
In response to the stance of the Trust, Ms D claimed:
(i) Mrs X had been temporarily unable to make decisions due to UTI delirium and would never have agreed to go into a care home had she not been unwell and that the staff all referenced her impaired cognition and delirium.
(ii) the Trust failed properly to consider that Mrs X could go home to be cared for by her family and care workers. Ms D stated the home environment was incorrectly judged as unsuitable for Mrs X’s needs.
She asserted that these failures caused her distress and uncertainty and wanted the Trust and Council to acknowledge fault as well as give assurances of improvements to prevent continued failings.
In responding to the first complaint the Trust stated it did not consider it necessary to assess Mrs X’s ability to make her own decisions – they presumed her to be competent.
With regard to the second complaint, the Trust records explained the reasons why discharge home was considered unfeasible. Mrs X was non weight-bearing and as such required specialist equipment (a non weight-bearing bed).
Furthermore, discussions with family members who insisted that they would be able to adequately care for Mrs X had revealed their lack of comprehension of what her needs entailed (they were not understanding that they would not physically be able to move Mrs X from her bed and did not understand her continence care).
Calderdale Council claimed it had no involvement in any assessment of ability and that the communications from the Trust, stating that Mrs X should not be considered for home discharge, were substantiated, with good reasons.
What was found
Concerning the complaint about assessment of capacity, fault was found. The Trust should not have dismissed the need for assessment purely owing to Mrs X’s state on admission nor on the fact of her UTI driven delirium.
Under the Mental Capacity Act 2005 neither having delirium nor dementia automatically means it should be assumed the individual cannot make decisions. But they do raise concerns and the Trust should have carried out an assessment or waited until the temporary symptom of mental confusion had subsided (which was soon to happen as she was undergoing treatment).
Not only did the Trust fail in its duties under the Mental Capacity Act, but it derogated from its own Discharge Policy which requires all relevant information to be provided to the patient and a record of this to be made.
However, since it was not known whether Mrs X might have had the ability to decide on her discharge destination or what she would have decided when recovered from delirium, the LGSCO was not able to say whether these faults caused her an injustice.
Regarding the complaint about not properly considering the home environment, the Ombudsman dismissed that as unfounded. Medical records explained the decision made, with sound reasoning. The Trust staff took into account relevant information in reaching the conclusion and made the decision on the basis that they had concerns about the adequacy of care that could and would be provided at Mrs X’s home. As such, no fault was found.
There was an additional finding of no fault in relation to the complaint about ignoring the family. The medical records showed that several discussions took place with family members as to their preferences and that they were not dismissed out of hand, but necessarily overridden by Mrs X’s best interests, for which the Trust was responsible.
Fault was found on the last complaint about communication with the care home. Evidence showed that poor communication with the care home to which Mrs X was discharged meant that the district nursing team was not contacted to administer blood-thinning injections and therefore she had indeed been placed at risk of a blood clot.
Responsibility was extended to the council for this part of the situation which should have ensured an effective system of communication and both the Trust and council were found to have caused distress to Ms D.
The Ombudsman found an additional fault (of which Ms D had not directly complained) that the Trust, contrary to its own policy, did not gain Mrs X’s consent to inform family members of the discharge plans. [This is unsurprising in the context of its view that she had capacity, to our minds].
Due to the death of Mrs X there could be no personal remedy for her injustice. However, the distress and uncertainty caused to Ms D needed to be remedied. The Trust and Council were encouraged to send written apologies and the Trust would use this as case study in teaching its staff what should not be done.
The Ombudsman said that Councils [where involved with NHS trusts under local protocols] must ensure an effective system of communication between the hospital from which patients are discharged and the care facility to which they are transferred.
Any service improvements the LGSCO might have expected of the care home, had already been covered by the Council’s safeguarding enquiry and had then been overtaken by the care home’s decision to stop operating.
Points to note for councils, NHS professionals, people using services and their carers, advocacy groups, and members of the public
This report is unsatisfactory in relation to the relationship between the Trust and the Council and who was actively responsible under statutory functions for this woman’s discharge from hospital in our view.
It is simply impossible to tell whether the Trust was operating as the delegate of the Council for Care Act purposes, or making hospital discharge arrangements under Discharge to Assess Policy, into a step down bed. If that is what was happening, then it is not surprising that the Council declined to acknowledge any involvement but this aspect should have been made explicit.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Calderdale Metropolitan Borough Council (23 011 152) 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.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!