The Ombudsman's final decision
Summary: Mrs X complained that health and social care professionals would not allow her to take her husband home from hospital. We did not find fault in the organisations’ actions. There is evidence to suggest professionals followed legislation and guidance in exploring concerns they had about the safety of the plan.
The complaint
Mr X lived at home when he went into hospital in early 2022. His wife, Mrs X, complains that professionals from West Sussex County Council (the Council) and Surrey and Sussex Healthcare NHS Trust (the Trust) inappropriately refused to allow Mr X to return home. She said they wrongly and unnecessarily insisted on a move into a nursing home. Mrs X said that, in deciding on this course of action, the professionals disregarded the Power of Attorney she held to decide on Mr X’s behalf.
Mrs X said that if Mr X had been allowed to return home when he was medically stable enough to leave hospital he would not have contracted Covid as an inpatient. Mrs X said that, without Covid, she would not have been prevented from seeing him for ten days while he was in hospital and a further ten days when he moved into the nursing home.
Mrs X said that if professionals had allowed Mr X to return home “he would be alive today”. Mrs X said Mr X’s health deteriorated in the nursing home, then further in hospital. She said this led to his death the spring of 2022.
The Ombudsmen’s role and powers 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).
The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
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).
We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in how the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)) When investigating complaints, if there is a conflict of evidence, we may 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.
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)
How I considered this complaint
I read the documents Mrs X provided and discussed the complaint with her. I also considered the Council and Trust’s comments on the complaint, the supporting documents they provided, and relevant law and guidance.
I shared a confidential draft decision with Mrs X and the organisations and offered an opportunity to comment on it. I took account of all of the responses I received.
What I found
Legislation and guidance Hospital discharge In August 2020, in response to the COVID-19 pandemic and the need to keep hospital beds free, the Government introduced the Hospital Discharge Service: Policy and Operating Model.
The model set out that patients must be discharged from hospital as soon as it was clinically safe. In February and March 2022 the relevant guidance was from October 2021: Hospital discharge and community support: policy and operating model. This continued to guide staff to reduce the length of inpatient admissions. The guidance also said that everyone should receive a holistic welfare check to determine the level of support they would need.
The hospital discharge guidance said, at 3.7, that when a person lacks “the relevant mental capacity and a decision needs to be made, then there should be a best interest decision made for their ongoing care”.
Mental capacity 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.
A key principle of the MCA 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.
If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might be asked to decide what is in the person’s best interests.
The MCA introduced the ‘Lasting Power of Attorney’ (LPA), which replaced the ‘Enduring Power of Attorney’ (EPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision on their behalf. The decision must be in the person’s best interests. Section 7.29 of the Code notes that: “Attorneys must always follow the [MCA’s] principles and make decisions in the donor’s best interests. If healthcare staff disagree with the attorney’s assessment of best interests, they should discuss the case with other medical experts and/or get a formal second opinion. Then they should discuss the matter further with the attorney.”
Overview of events Around a year before the events leading to this complaint doctors diagnosed Mr X with Alzheimer's disease and dementia. He had other underlying health conditions. Mr X lived at home and Mrs X cared for him.
In early 2022 Mr X left the house in the early hours while Mrs X was sleeping. Mrs X called the Council to note her concerns about Mr X wandering. She noted that Mr X would not allow carers into the house. Mrs X said she was going to start planning for Mr X’s long-term care, looking at possible care homes.
Around this time Mr X also became physically unwell. Mr X’s health got worse and an ambulance took him to hospital. He was found to have a chest infection with worsening confusion. After a couple of days doctors decided Mr X was medically stable enough to leave hospital.
The hospital referred Mr X to the Council for the purpose of planning a short‑term placement in a care home. It said that the aim of this would be to allow for further assessment of Mr X’s long-term care needs and said Mrs X was no longer able to continue caring for Mr X at home. Mrs X told hospital staff that she wanted to take Mr X home, but staff said she should discuss the situation with professionals to make a decision in Mr X’s best interests.
Mrs X spoke to a social worker the following day. She noted she was in the process of arranging for Mr X to move to a specific care home. It did not have a vacancy and Mrs X said she wanted Mr X to return home in the interim. Mrs X said she would care for Mr X on her own as he would not allow carers to support him. The social worker noted concerns that such a move home would leave both Mr X and Mrs X at risk of harm. She planned to speak to health colleagues to ask them to speak to Mrs X about the risks.
The social worker spoke to an occupational therapist the following day. The therapist shared the social worker’s concerns about Mr X returning home. The occupational therapist said they would try to arrange a best interests meeting because of the risks involved.
A best interests meeting took place two days later. The meeting agreed a plan to arrange a short-term placement, with a view to Mr X moving on to Mrs X’s preferred care home when a space became available.
Mr X remained in hospital while the Council tried to arrange a placement that Mrs X agreed would be suitable and acceptable. Toward the end of the month Mr X tested positive for Covid. The hospital closed the ward to visitors for ten days.
The Council approached a range of homes. It identified one which had a vacancy and which Mrs X agreed to. Mr X left hospital and moved into the care home in the middle of February. Mrs X was not allowed to visit for the first ten days due to Covid quarantine restrictions.
Mrs X visited her husband after a ten‑day quarantine. She said that he did not look the same person and had stopped eating and drinking and would not take his medication. Mrs X continued with arrangements for Mr X to move to a different home on a long-term basis, to be funded privately. Mr X was not able to move because of a Covid outbreak at the other home.
Toward the end of March Mr X returned to hospital with sepsis. He sadly died around a month later.
Analysis Mr X did not have the mental capacity to make an informed decision about where he should live when he left hospital. Mrs X held a Lasting Power of Attorney to make decisions about Mr X’s health and welfare and about his financial affairs.
Mrs X made clear her request for Mr X to return home from hospital to wait for a place at her preferred care home. Health and social care professionals have duties to consider the views, needs and wishes of the patient and their main carers. However, they also have a responsibility to reach their own professional views about the safety and viability of possible discharge plans. The MCA and Code are clear that attorneys are expected to follow the legislation and guidance and make decisions in the person’s best interests. They are also clear that, where professionals have concerns that a decision is not in the person's best interests, the professionals should act on those concerns.
The evidence shows that both health and social care professionals did have concerns about the suitability and sustainability of the plan for Mr X to return home. Professionals had concerns about the health and safety of both Mr X and Mrs X if Mr X returned home. These concerns were grounded in information they had been given that: Mrs X was Mr X’s sole carer and needed to be on hand to care for him throughout the day and during the night as well, Mr X had previously had carers but would not accept support from them, Mr X had been wandering more, and that he had wandered out of the house in the middle of the night, and Mrs X had been finding this tiring and missing out on sleep because of it.
Given the professionals had concerns for both Mr X’s and Mrs X’s health and safety it was appropriate that they raised them and took steps to explore them.
Neither the Trust nor the Council made a unilateral decision about Mr X’s care. Instead, they arranged a best interests meeting, involving Mrs X, to discuss the situation. This is an appropriate and established way of resolving situations such as this, where there are differing views about which decision would be in the person’s best interests.
The best interests meeting involved appropriate personnel. There is evidence that they discussed relevant issues and considerations. There is also evidence that all parties agreed on the decision the meeting made.
Overall, I have not found any fault in the process that professionals followed in: raising their concerns; arranging a best interests meeting; and, facilitating that meeting.
Having made the decision to seek a temporary placement, the Council took account of Mrs X’s views and wishes about the placements she would and would not consider. At this time, the hospital discharge guidance gave clear direction and guidance to health and social care professionals about the need to discharge people from acute care as soon as it is safe to do so. The records show staff sought to adhere to this by approaching a range of homes. It was out of the Council’s hands that several homes either had no vacancies or were not accepting new residents because of Covid restrictions. As such, I have not found that fault by either the Trust or the Council caused any avoidable delays in Mr X’s inpatient admission.
When Mr X went into hospital he had a number of long-term, significant health problems. Doctors were of the view, at the very start of the admission, that Mr X would be too frail to respond to attempts at resuscitation if his health worsened.
Mr X contracted Covid while professionals were trying to arrange a short-term placement. We have no way of determining whether this was avoidable. Further, in view of Mr X’s long-term health conditions we can do no more than broadly speculate about whether a different chain of events at this time would have led to a different outcome. I understand that Mrs X holds a strong view about this, and is clear in her mind that Mr X would not have died had he left hospital sooner. However, from our independent perspective, there are too many unknowns to be able to say that is the case.
Decision I have completed this investigation on the basis that there was no fault.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman