United Lincolnshire Hospitals NHS Trust

5. Mrs I complaints on behalf of her son, Mr O. She says the Trust discharged Mr O without providing rehabilitation treatment after his accident in January 2018. Mrs I says he should have had physiotherapy, cognitive behavioural therapy (CBT is a psycho-social intervention that aims to reduce symptoms of various mental health conditions) and occupational therapy.

6. Mrs I says the lack of rehabilitation has affected Mr O’s recovery. He continues to have cognitive impairment, which affects his daily life, social abilities, mental health and ability to work. She has also been affected as Mr O now lives with her, and she has to take care of him. She has been making his complaint, appealing for benefits and going to tribunal, as well as taking care of him at home and managing his cognitive impairment. She has lost her job because of having to take time off.

7. Mrs I would like to see service improvements and to get financial compensation for the stress this has caused.

8. Mr O was admitted to intensive care at Hospital A after a fall, which caused many injuries including a bleed on his brain. Mr O was in an induced coma at first. But after ten days medical staff took him off his ventilator and he woke up.

9. Mr O had some surgery to repair fractures and his cognitive abilities were assessed. He also had difficulty with his memory and did not know why he was in hospital. He often said he wanted to go home. A DoLS was put in place under the Mental Capacity Act (2005).

10. Mrs I was travelling to see her son every day and wanted to have him closer to home, so she requested that he be moved to Hospital B. She also requested that he be admitted to the neuro rehabilitation centre.

11. Mr O was transferred as requested, but he had to wait to be admitted to the neuro rehabilitation centre. At this point, Mrs I became concerned about his care. Mr O was transferred to a different ward while he was waiting.

12. When Mrs I visited him she says was unable to speak to anyone about her concerns because no one was available. She was told that Mr O had been taken off the DoLS and staff were considering whether he could be discharged.

13. Mrs I disagreed with this decision because Mr O was yet to get any rehabilitation. Mrs I was also concerned because Mr O had no fixed home and had a drug dependency.

14. Mrs I complains that Mr O was discharged without any treatment. She says he had a cognitive impairment and could not manage on his own. Mrs I tells us he has struggled with his recovery due to the lack of rehabilitation.

Discharge without rehabilitation

18. Mrs I complains that Mr O was discharged without any rehabilitation. She says he had a cognitive impairment and could not manage on his own.

19. The Trust has said Mr O’s condition improved a lot after he was transferred. It explained that although it has also said that Mr O would have benefited from rehabilitation, he was deemed to have capacity so keeping him in hospital against his will would have been unlawful.

20. The Trust confirmed that Hospital A sent Mr O’s treatment plan when he was transferred. This treatment plan was:

• subdural haemorrhage – in patient neuro rehab • left side chest injury – no follow-up needed • left hip fracture – local orthopaedic follow-up • facial fractures – no follow-up needed

21. It also said an independent assessment arranged on 9 January 2018 concluded that Mr O had capacity, so continuing his emergency DoLS was not appropriate.

22. The Trust said Mr O also had a repeat cognitive assessment, which had previously shown a score of 16/30, which shows moderate cognitive impairment. The repeated assessment score was 27/30, which is considered as no impairment. The scale shown here appears to be the Mini Mental State Examination (MMSE). The MMSE has a maximum score of 30 and scores are grouped into the following: 25-30 points would be considered normal cognition, 21-24 points would show a mild deficit, 10-20 points shows moderate deficit, and nine points or lower would be considered a severe cognitive deficit. The occupational therapist also documented on 10 January that they had no doubt Mr O had capacity to make his own decisions.

23. The Trust said that the physiotherapist reviewed Mr O, noted he could move around independently on the ward and concluded physiotherapy was not required. Mr O was then discharged from the Trust.

24. Mr O also attended A&E on 18 February 2018, after he was discharged, as he was confused and needed help. He had been unable to understand the need to take his medication. The Trust said he was referred to the crisis team. The crisis team felt the referral was inappropriate due to his head injury. He was then referred to the Mental Health Liaison team who advised Mr O to contact a charity that provides support to people with brain injuries. The Trust said that because Mr O showed he understood his difficulties, removing the DoLS was correct.

25. NSF guidance for long-term conditions states that people with neurological conditions can experience a wide range of physical, sensory, cognitive, psychological, emotional, behavioural and social difficulties, with a broad range of needs. It says an integrated approach to assessing care and support needs, and to delivering services, is key to improving the quality of life for people with long-term neurological conditions.

26. The records show Mr O had assessments by nursing staff, physiotherapy, an occupational therapy dietician, a rehabilitation medicine consultant, psychiatry and social work. Our adviser said these assessments appear to have been carried out to a professional standard. But they noted there were delays in these assessments being carried out and a lack of evidence of the coordination needed between assessments to make sure Mr O got the holistic, interdisciplinary assessment and rehabilitation plan recommended in NSF guidance.

27. For example, on 7January 2018 nursing staff documented that Mr O had declined Bisoprolol (used to treat high blood pressure), but there is no documented assessment of capacity to show they checked that he understood the reason for that medication and the risks of not taking it.

28. On 8 January 2018 a physiotherapist documented that Mr O was able to move around independently on the ward and no further physiotherapy input was needed while he waited for a bed in the neuro rehabilitation centre. But the detailed multi-disciplinary team (MDT) handover from Hospital A documented the orthopaedic advice that he was touch weight bearing only (where the toes can touch the floor but no body weight should be put on the leg). At that time, there was no documentation of his capacity to understand and make a decision about the risks of ignoring that recommendation. This issue was not highlighted until the occupational therapy assessment on 10 January.

29. On 9 January a consultant psychiatrist documented a mental health assessment, noting that he was ‘somewhat drowsy and sedated and on a list of psychotropic medication which needs to be reviewed’ but showing no evidence of a mental condition. It concluded that he ‘appears to have capacity to make decisions’ so the DoLS was removed.

30. There was no documented detailed capacity assessment, considering the effects of the cognitive impairment due to his brain injury, his understanding of these, and his capacity to make decisions about the risks of being unsupported in the community. At this time Mr O had not yet completed a full multi-disciplinary assessment of his cognitive functioning in real life situations. While the occupational therapist offered this on 10 January 18, by this time the DoLS had been removed and Mr O did not accept further assessment.

31. A consultant in rehabilitation medicine reviewed Mr O on 9 January 2018. Our adviser said the consultant correctly identified that Mr O needed a detailed occupational therapy assessment, including cognitive assessment and assessment of Extended Activities of Daily Living (a scale used to assess ability in daily living activities in patients with brain injuries, such as washing, dressing and mobility). But by this time there was no legal framework in place to make sure Mr O stayed in hospital for this assessment.

32. The delay in assessment by the consultant in rehabilitation meant the psychiatric opinion on capacity determined the decision on removing the DoLS. But the Mental Capacity Act requires assessment of mental capacity based on both disorders of structure and function of the brain or mind. Our adviser said this should have been a multi-disciplinary decision by mental health and specialist rehabilitation services, taking account of Mr O’s mental health and the consequences of his brain injury.

33. According to the Mental Capacity Act a DoLS authorisation applies to a specific place and does not automatically transfer with a patient to a new setting. The records show the Trust completed the DoLS form to request a new authorisation. This form shows the Trust’s assessment that Mr O had capacity and understood his care and treatment, even though his decisions may be unwise.

34. We cannot comment on whether the decision to remove the DoLS was correct. This decision was made by Lincolnshire County Council and is not in our remit. But we can consider the administrative process the Trust followed to make this decision.

35. We consider that the assessments used to decide whether Mr O had capacity to understand and make decisions about his care and treatment were not done in line with the guidance. This should have been based on a full multidisciplinary assessment, rather than just a mental health assessment. We find a failing in this part of his care.

36. Mrs I said the impact of this on Mr O is that he did not get the rehabilitation he needed and his recovery has been severely impaired as a result.

37. Our adviser said the outcome of neurological rehabilitation is not only determined by what interventions are offered, but also by the readiness of the patient to engage in them.

38. It is clear from the records that when Mr O was in Hospital B he was reluctant to engage in the assessments being carried out. It is impossible for us to tell if Mr O would have improved if he has stayed in hospital and had the rehabilitation, because his willingness to participate would have affected the outcome.

39. But we do consider that this would have caused distress to Mrs I, and her son, which has not been accepted properly in the Trust’s response.

40. We partly uphold this complaint. We have found that the assessments carried out to make the decision to remove the DoLS and discharge Mr O were not in line with guidance. But we cannot say the outcome would have changed for Mr O if he had stayed in hospital.

1. The Parliamentary and Health Service Ombudsman has found a failing in United Lincolnshire Hospitals NHS Trust’s (the Trust) actions when assessing Mr O’s capacity. We cannot comment on whether the decision to withdraw the deprivation of liberties safeguarding (DoLS) was correct, but we have found that the process used to assess Mr O’s condition at the time was incorrect. We do not consider the Trust has put this right.

2. The DoLs are part of the Mental Capacity Act (2005) and aim to make sure people in hospitals and care homes are cared for in a way that does not inappropriately restrict their freedom. They should ensure that a patient is only deprived of their liberty in a safe and correct way and only when it is in their best interests.

3. We cannot say whether Mr O’s recovery would have been any different, but we recognise the distress this has caused for Mrs I and Mr O, at the time of these events and since he left the hospital.

4. We partly uphold this complaint and recommend the Trust should:

• write to Mrs I within one month to accept the failing identified in this report

• provide an action plan within three months showing what steps it has taken to make sure assessments relating to capacity are in line with the multidisciplinary approach, as outlined in guidance referenced in this report

• share a copy of that action plan with us and Mrs I

• share a copy of that action plan, and an anonymised copy of the final report, with the Care Quality Commission.

41. To make our recommendations, we have referred to our ‘Principles for Remedy’. These say that where poor service or fault has led to injustice or hardship, the organisation responsible should take steps to put things right.

42. Mrs I has said in her complaint she would like financial compensation. Our principles say public organisations should put things right and, if possible, return the person affected to the position they would have been in if the poor service had not happened. If that is not possible, they should give them appropriate compensation.

43. To decide on a level of financial remedy, we look at cases where the person has experienced similar injustice, along with our severity of injustice scale. We can only recommend a level of compensation that is appropriate for the level of injustice we have found in this report.

44. We are unable to say the outcome would have changed for Mr O, so we can only consider the distress caused by the failings identified. We appreciate Mrs I experienced worry and distress because she felt her son’s care was not appropriate. We consider that this level of injustice would apply to level one on our severity of injustice scale, which would include worry where the effect is of short duration and there is no wider impact. We consider an apology sufficient in a level one case.

45. Our principles say public organisations should look for continuous improvement. They should use the lessons learnt from complaints to make sure they do not repeat failings or poor service. In line with this, we recommend the Trust takes the following action:

• write to Mrs I within one month to accept the failing identified in this report • provide an action plan within three months showing what steps it has taken to make sure assessments relating to capacity are in line with the multidisciplinary approach, as outlined in guidance referenced in this report • share a copy of that action plan with us and Mrs I • share a copy of that action plan, and an anonymised copy of the final report, with the Care Quality Commission.

46. We understand this has been a distressing time for Mrs I and Mr O and appreciate the challenges they have faced through Mr O’s recovery. We hope our report goes some way to resolving their concerns.