Media attention has lately focused on the ongoing scandal of the Department of Health and Social Care's (DHSC) lack of attention to preventing the spread of coronavirus among residents of care homes. There has even been evidence of NHS hospitals attempting to pressure homes into accepting patients formerly in hospital, sometimes without testing for the presence or absence of the virus.
A related problem that has been about for much longer than COVID-19 is that of patients who are discharged from hospital care to care in their own homes or with relatives without an adequately planned transfer process. Good communication is essential. Community nurses are pivotal in the process, and they have a right not to allow influences outside their professional expertise to interfere with their considered decisions.
Importance of good communication
The records that are kept of a patient's health and progress are central to the process of ongoing care. Records should not only be written in clear language but should also be expressed in such a way as to avoid misinterpretation by the next practitioner to become involved in the care process.
Around 30% of the UK's nursing workforce come from overseas, and many of these practitioners speak English as a second language, with varying degrees of proficiency. Their valuable contribution to UK healthcare services should not obscure possible weaknesses in English expression, and managers ought to be aware of, and sensitive to, any foreseeable problems in this regard.
The importance of good communication is nowhere more important than at handover. Handovers of professional responsibility range in their nature, from one practitioner reading another's notes during the same shift to handover at change of shift, right across to the transfer of a patient from one facility or care environment to another.
Community nurses play a pivotal role in the preparation and the implementation of the care plan for such a transfer, and handover communication is what is relevant to present purposes.
The care plan
It is elementary to state that a plan for a change of treatment and care facility should be framed within the bounds of practical possibility. But here lurks a problem. In a healthcare system such as the NHS, there are finite limits to available resources.
Care planners may sometimes have to settle for second best. While the law relating to reasonable care would never require those drawing up a change of care plan to formulate a plan that is unreasonably difficult to implement (for this could actually harm the patient in the long term), there is a positive legal duty on managers to plan according to present or reasonably foreseeable constraints. This duty has been cast into prominence by the effects of the coronavirus pandemic and concerns both material resources and personnel.
A care plan that recognises constraints on personnel and equipment is legally acceptable. Public health authorities have a duty to inquire into any such constraints and to publish reliable and accurate information to provide a practical guide to those providing frontline services. In the context of an examination of change from hospital care to domiciliary or other care, practitioners are entitled to rely on accurate and up-to-date information about available provision. Were they to formulate a plan based on misleading or even inaccurate information, and were a patient to come to harm in consequence and a negligence claim to ensue, the public authority responsible for the deficiency could be joined as a co-defendant in an action in negligence.
Although, on paper, both the public authority and the care planning team would each be liable to pay the whole of the damages in the event of a liability judgement or an out-of-court settlement, the likely outcome would be that the public health authority responsible for the publication of deficient, misleading or even false information that could reasonably have been foreseen to be acted on by care planners would foot the whole bill.
Such a scenario is not fanciful. Only very recently, the DHSC was found to have seriously mishandled the statistics relating to COVID-19 by its failure, initially, to include deceased residents of care homes in virus-related death statistics, and subsequently compounding its error by a failure to take reasonable steps to ensure requisite personal protective equipment (PPE) for carers in the homes themselves.
Anecdotal evidence published widely in the media suggested that public health authorities commandeered the available supplies of PPE by diverting them towards NHS personnel. The Government may assume the power to requisition material supplies during wartime (but only then when appropriate legislation has been enacted) or if a state of martial law has been declared, but not otherwise. The way in which the DHSC was allowed to do such a thing even during a pandemic crisis will no doubt be one of the many issues to be examined by the Commission of Inquiry after the (worst of the) pandemic is over, demanded by many but so far brushed off by the Westminster government.
Changes in care planning and ‘bed blocking’
‘Bed blocking’ is a disagreeable term used to divert onto an unfortunate patient the responsibility for a deficiency of available resources or, in some cases, a mismanagement of those resources that are available. A patient who occupies a bed for longer than an optimum period does so through no desire, still less fault, of their own. Ward staff, their managers and the patient in question no doubt share a common desire that things were otherwise.
The reasons for which a bed is blocked are diverse. There may be a shortage of facilities to which the patient may safely be transferred in a way that accords with their health, safety and general wellbeing. There may have been a failure to establish and maintain an effective system of communication between diverse avenues to healthcare provision. In the latter case, it is the channel of communication, not the bed, that is blocked.
It is incumbent on those seeking to free up hospital beds to maintain an effective and up-to-date register of information bearing on alternative provision, and community nurse members of the care planning team are entitled to expect nothing less. The requisite standard of care in such an exercise is the standard reasonably to be expected of a competent manager, using an information and communications system that is fit for purpose and capable of withstanding rational and informed criticism.
An undesired result in a particular case does not indicate a failure to measure up to a legally requisite standard of care, provided that reasonable care has been taken. There is no requirement that the system, or those in charge of its management, must be the best in the business, for that would be an intolerable burden. The Prime Minister Boris Johnson is fond of ‘the best in the world’ and ‘our wonderful National Health Service’, but such jingoistic expletives add nothing to any useful debate about practicalities. Doing what is reasonably acceptable according to properly acceptable professional standards is the standard of care required by the law, a position that has yet to be reached by the Westminster government in its handling of the pandemic.
While the evidence is anecdotal, there have been reports in the media that some hospitals have attempted to force nursing and residential care homes into admitting patients, either with or without testing for COVID-19. Precisely how a hospital could force a home to do such a thing is a matter of conjecture, but is in any event an appalling thought. Hospital managers who attempted such a tactic would be inviting legal action under several heads of liability.
Recourse for apparent maladministration
A valuable overview was taken by the office of the Health Service Commissioner (HSC) (Parliamentary and Health Service Ombudsman, 2016). It is the function of the HSC to shed light on maladministration (including mismanagement in the delivery of healthcare services in the NHS), its causes and possible remedies, rather to point the finger of legal blame. The jurisdiction of the commissioner does not extend to the private sector. Investigation by the commissioner and litigation in an individual case are mutually exclusive exercises. That is to say, the HSC will not investigate a complaint of maladministration if concurrent litigation is proceeding on the same facts. The HSC publishes an annual report and also publishes special reports in matters requiring special attention.
The special report published in 2016 focuses on discharges from hospitals that are considered to have been unsafe and on the reasons for this apparent lack of safety. Under the heading ‘Patients being discharged with no home-care plan in place or being kept in hospital due to poor communication across services’, the report states:
‘Lack of integration and poor joint working between different aspects of healthcare, such as hospital and community health services can result in people being discharged without the support they need to cope at home. Equally, lack of co-ordination between health and social care services can lead to lengthy delays in finding suitable care packages for elderly people with complex needs. This means they can be stuck in hospital wards at the expense of their dignity, human rights and independence.'
(Parliamentary and Health Service Ombudsman, 2016)
Public health officials are apt to fall prey to the temptation of quoting national statistics in answer to criticism of lack of services or poor delivery of the services that are available. The 2016 report of the HSC makes the valuable point that a concentration on across-the-board statistics may serve to divert attention from local or even regional deficiencies. It is important to bear this point in mind when it comes to assessing the adequacy of information available to teams planning a change of care facilities. Were care planners to lack practical knowledge of specific local conditions pertinent to a particular patient, they might be inadequately equipped to deal with the case before them.
The HSC report also found an alarming number of cases in which a patient was discharged from hospital without informing family or other potential carers. It would not be difficult for a patient harmed by such an omission to make out a case in negligence based on the failure, were their health to be adversely affected.
In an NHS confederation survey conducted in 2013 (House of Commons Health Committee, 2013), 92% of hospital chief executives said they were seeing more delayed discharges from hospital. Shortly afterwards, in a King's Fund poll of funding directors, 63% said that the delays at their NHS trust has become worse over the past year.
There are various possible reasons for the discrepancy. As the King's Fund pointed out, the data do not give any indication of regional variation. The national average does not inform of what is happening at particular NHS trusts. If the majority of hospitals are managing to transfer patients without delay, this might obscure the fact that a few hospitals have a very poor record in this area.
Dynamics of changes in care planning
Every team responsible for changes in care planning will be different, and it matters little whether there is a dominant voice that influences the outcome of the team's deliberations. What matters is that the team be possessed of the fullest available information applicable to the case of the specific patient. Social workers may have a part to play in the decision-making process, but experience shows that they can be more of a hindrance than a help. A recent case, decided under the jurisdiction of the Court of Protection, reached court only because of the intransigence of a social worker who thought he knew better than the health professionals, is typical.
The care team was unanimously of the view that it would be in the resident's best interests to be transferred to the care of her relatives who were willing and able to do so. For reasons of its own, the local authority in whose catchment the care home was situated raised objection. An initial hearing proved inconclusive because the judge was not satisfied that the objection contained the amount of substantive detail sufficient in law to block the transfer plan.
During a second hearing in the same court, the judge observed that the social worker had ‘softened his view’ and was no longer disposed to challenge the decision of a team of expert and well-informed health practitioners. While such language may, in common parlance, be considered mild, when uttered by a judge in the course of judicial proceedings, it is biting sarcasm. The intervention of the social worker (they are always referred to as ‘the local authority’ and never as social workers as such) caused unnecessary delay in the discharge and consequent distress to the patient and, no doubt, also to her relatives, who were ready and willing to take care of her, as well as unnecessary expense in the form of court costs and the wasted expenditure of professional time.
The adoption of set-piece stances will never impress a court in any matter of patient care that comes before it, nor will a stance that is intransigently based on an initial snapshot of a patient's case when others better qualified by their experience of a particular patient have put valuable time and effort into considering it.
Would a discharge policy help?
A policy that is unsupported by critically argued principle as well as, in this case, reliable, statistically dependable and up-to-date local surveys of available care provision is hardly worth the paper it is written on. And, given that such provision can change according to a whole variety of conditions, many of which are beyond the control of managers, it is doubtful that a general policy could add anything of value in a particular case. A general policy that is not sensitive to specific detail could be positively dangerous. It could open up the health provider to legal liability for an unreasonable failure to take into account all the relevant detail of the particular case in issue. Far from being a one-size-fits-all solution, a blanket policy could end up satisfying none.