The Ombudsman's final decision
Summary: Mr Y, on behalf of his father Mr X, complained the Council failed to notice a decline in Mr X’s health that resulted in an emergency admission to hospital causing distress. there is no evidence that fault by the Council was the reason for the hospital admission.
The complaint
Mr Y, on behalf of his father Mr X, complains the Council failed in its duty of care as it failed to a notice a decline in Mr X’s health that resulted in an emergency admission to hospital. Mr Y also complains about poor communication.
Mr Y says the situation has been stressful.
The Ombudsman’s role and powers
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: there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by the complainant’s representative; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with the complainant’s representative; sent my draft decision to both the Council and the complainant’s representative and taken account of their comments in reaching my final decision.
What I found
Mental Capacity Act The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
Mental capacity assessment A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision: because they make an unwise decision; based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or before all practicable steps to help the person to do so have been taken without success.
The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following: Does the person have a general understanding of what decision they need to make and why they need to make it?
Does the person have a general understanding of the likely effects of making, or not making, this decision?
Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
Can the person communicate their decision?
The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
Key facts Following a short stay in care home, Mr X was discharged home with a package of care on 16 January 2023. The package of care was for three visits per day to assist Mr X to take medication and help with meals.
On 24 January, a neighbour called an ambulance as Mr X was found in a confused state and his house was in disarray. The neighbour subsequently reported the decline had taken place over the last 24 hour period. The care provider confirmed the carers had attended as required but had failed to gain access only for the last visits before the ambulance was called.
After a period of time in hospital, Mr X agreed to move to an assessment bed on 17 February. During this time, care and social work staff observed Mr X and were satisfied he had mental capacity. Mr X wanted to return home and so a new package of care was discussed.
Mr Y was concerned that sending Mr X home, with the same package of care as previously, would not work. He said it was not Mr X’s mental capacity that was the issue but his vulnerability. He said Mr X would neglect himself and would be able to drink and smoke which would worsen his health.
The case notes indicate the social worker discussed the concerns with Mr Y. The social worker was satisfied Mr X had mental capacity to make decisions and explained to Mr Y that this included making “bad” decisions such as continuing to smoke up to 80 roll up cigarettes per day. The social worker said Mr X did not qualify for 24 hour care and so the Council could not provide this. He said that if the family wanted 24 hour care for Mr X they would need to pay the full cost.
The social worker, aware of the family’s concerns for Mr X, carried out risk assessments with Mr X in preparation for his return home. This included risk assessments in respect of alcohol, medication, nutrition, smoking, night walking and carers gaining entry. The social worker also had a discussion with Mr X’s GP.
The GP’s opinion was that Mr X should not return home. He said his smoking was a fire risk and he questioned Mr X’s mental capacity, saying Mr X was telling the social worker what he wanted to hear just so he could return home. The GP confirmed he had not seen Mr X since October 2022 and that he was not intending to visit Mr X in the next two weeks before discharge from the assessment bed.
A meeting was held to discuss Mr X’s discharge which Mr Y attended. Notes of the meeting show discussions took place about the discharge plans and risk assessments and amendments were made. Mr Y collected Mr X on 29 March and Mr X returned home.
The package of care provided for three visits per day. The main tasks were to give Mr X medication and to ensure he was eating properly. The daily care notes provided include information to show the carers encouraged Mr X to eat and offered to make food for him.
A home visit was carried out on 28 April and was attended by Mr Y and the neighbour to discuss Mr X’s care needs. The council officer said the case notes show things are going well. Mr Y and the neighbour disagreed saying a lot of food is unopened and out of date and that Mr X was not washing himself. They reported that Mr X's memory is worsening and he is getting confused. They reported a deterioration in the last few weeks and worried Mr X would be back in hospital if it carried on. Mr Y said the carers should be more vigilant and encourage Mr X in his daily living tasks. He also worried Mr X was smoking too much which was supressing his appetite. It was agreed to refer the case to a social worker to consider a move to supported housing.
Mr Y also requested an additional call each day to assist with medication and a change to a different agency. The Council agreed to this. The notes show the last visit by the old care provider took place at 5 pm on 2 May. The carer could not gain access on the final planned visit of the day and this was reported to the Council.
The new care provider’s first visit was 3 May. The notes suggest this was a very quick handover and there may have been some delay in the detailed information being provided for the carers, such as the code for the key safe and medication box. Mr X’s health deteriorated and following an emergency call by his family, Mr X was admitted to hospital on 5 May with respiratory failure.
Mr X has now moved to a care home. A mental capacity assessment completed in June 2023 found he did not have capacity to make decisions about where he lived.
Analysis Mr Y complains the Council failed in its duty of care as it did not notice and act on a decline in Mr X’s health. He says it was down to the neighbour alerting his wife to Mr X’s situation that she was able to call an ambulance. Mr Y says his father’s condition was very serious when admitted to hospital in May 2023.
It is my understanding that Mr X was in hospital in December 2022 and January 2023. Each time, once medically cleared for discharge, he went to an assessment bed in a care home. Each time the Council assessed Mr X before he returned home with a package of care.
Mr Y is particularly concerned about the decision to return Mr X home on 29 March. He said that once home he believed Mr X would neglect himself and that it would eventually result in Mr X going back into hospital. While I acknowledge that Mr X was re-admitted to hospital on 5 May, I have to consider whether this was as a result of fault by the Council.
Before returning home on 29 March, Mr X had been in the assessment bed for several weeks. The views of the staff in the care home were sought, along with discussions directly with Mr X. The information I have seen shows the Council took the view Mr X had mental capacity to make decisions about where he lived and that he was clear that he wanted to return home. The staff reported that Mr X was able to manage most daily living tasks.
Mr Y raised concerns and evidence shows the Council listened to them. It spoke with Mr X’s GP who also raised concerns about Mr X returning home. A meeting was held to discuss Mr X’s discharge and changes made to the arrangements to reflect the points raised, for example, that carers should phone Mr X if having difficulty accessing the property.
Mr Y’s view about the level of care required by his father was different from the view of the social worker. A difference of opinion is not evidence of fault. I am satisfied the Council properly considered the situation and took account of all views when deciding the level of care Mr X required. The Council used its professional judgement and decided Mr X did not require 24 hour care. The Council properly involved Mr Y in this decision and clearly explained it to him.
However, Mr X was only at home for just over a month before being re-admitted to hospital. I note Mr Y raised concerns with the Council about the level of care and a meeting was held at Mr X’s home on 28 April which Mr Y attended. At this meeting he raised the issue of Mr X’s declining health and his concerns about the standard of care being provided. The Council agreed to Mr Y’s request to change the care provider. This was actioned and the new care agency started on 3 May. Two days later, Mr X was admitted to hospital.
I am satisfied the Council listened to Mr Y’s concerns and acted on his wishes. While Mr X was admitted to hospital just days after this meeting, I have not seen evidence which shows this was as a direct result of fault by the Council. Mr X is an older person with poor health who continued to smoke heavily even with a respiratory condition. As Mr X was at the meeting on 28 April and I have not seen evidence to suggest medical intervention was sought for him on that day, I can only assume he was not presenting with any urgent health issues. Not all situations are predictable or avoidable. The new care provider began working on 3 May so had little time to get to know Mr X and assess his situation. I cannot conclude there was any failure by the Council which resulted in Mr X’s decline and admittance to hospital.
Mr Y has also complained about poor communication. When I spoke to him on the telephone he was talking more generally about poor communication rather than about specific incidents which I would be able to investigate further. His view is that different parts of the Council are not aware what is going on and this resulted in him being contacted when he felt this was unnecessary.
While I appreciate Mr Y’s reasons for raising this are to ensure other people have a better experience than him, I am not persuaded it would be proportionate to pursue this further. As explained above, we have to use public money carefully and I am not persuaded it would be appropriate in this case to take further action.
Final decision
I will now complete my investigation as there is no evidence of fault causing a significant enough injustice to warrant further investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman