Decision : Upheld
Decision date : 27 Feb 2019
The Ombudsman's final decision:
Summary: The Ombudsmen found fault by a Council and a CCG with the way it assessed someone’s care needs and entitlement to Continuing Healthcare funding. The organisations have already acknowledged these faults, but the Ombudsmen recommended actions to remedy the outstanding injustices to the complainant, which the organisations have accepted. The Ombudsmen found no fault with a care home’s decision to seek advice from other organisations or with the medication given while providing care for a resident.
- Miss Q complains about matters affecting her late brother Mr T and herself by Essex County Council (the Council), Mid Essex Clinical Commissioning Group (the CCG) and Bupa Care Homes (CHC) Limited (who manage Colonia Court - the Home). In particular, Miss Q complains about:
- The Council:
- Failure to properly assess and meet Mr T’s care needs between December 2016 and June 2017.
- Delays in assessing Mr T’s eligibility for NHS Continuing Health Care (CHC) and in refunding care fees already paid by his family.
- Poor quality of care provided to Mr T between 19 June and 24 September 2017, including:
- When Mr T’s behaviour became intense due to his Huntington’s Disease, staff did not try to help him, instead calling the police or mental health team;
- Unnecessary trip to the Emergency Department when Mr T’s finger had been trapped in a door
The Ombudsmen’s role and powers
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their 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
- In reaching this decision, I took account of the information Miss Q provided to the Ombudsmen. I made enquiries of the Council, the CCG and the Home. I took account of the documents and comments the Council, the CCG and the Home provided, including relevant medical and care records for Mr T. I have also sought clinical advice from a registered nurse to help inform my views.
What I found
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
- An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any change in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process
- The Council has its own guidance: ‘Practice Guidance for Social Care Practitioners’. This says when carrying out an assessment, practitioners should consider if the person may be eligible for NHS Continuing Healthcare by initially completing the Continuing Healthcare Checklist. If appropriate, progress to the multi-disciplinary team for completion of a full Continuing Healthcare assessment.
- The Council’s Key Performance Indicator is to complete assessments within 28 days. It will give priority if the adult is ‘at risk’.
- Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
- The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare.
- A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC or FNC and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
- For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. Local health and social care joint processes should be in place to identify individuals for whom it may be appropriate to complete a Checklist, including for individuals in community settings. It is for each CCG and local authority to identify and agree who can complete the tool. Staff involved in assessing or reviewing individuals’ needs should do this as part of their day-to-day work where possible.
- If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. If the outcome of the Checklist is not to carry out a full assessment, the CCG should write to the person and tell them they have a right to ask the CCG to reconsider it. If they disagree with the outcome once the CCG has reconsidered the decision, they can complain to the CCG. There is no further right of appeal.
- A nurse will usually co-ordinate a full multidisciplinary assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment. The overall assessment and eligibility decision making process should, in most cases, not exceed 28 calendar days from the date the CCG receives the positive Checklist
- When there are valid and unavoidable reasons for the process taking longer, timescales should be clearly communicated to the person and (where appropriate) their representative. Individuals must never be left without appropriate support while disputes between statutory bodies about funding responsibilities are resolved.
- The Nursing and Midwifery (NMC) issued The Code in 2009 (updated 2015). This sets out standards of conduct, performance and ethics for nurses and midwives. The Code states nurses must:
- accurately identify, observe and assess signs of normal or worsening physical and mental health in the person receiving care;
- make a timely referral to another practitioner when any action, care or treatment is required;
- ask for help from a suitably qualified and experienced professional to carry out any action or procedure that is beyond the limits of their competence;
- take account of your own personal safety as well as the safety of people in their care
- Mr T carried the defective gene that causes Huntington’s disease (a genetic condition that stops parts of the brain working properly over time. It gets gradually worse over time). He became symptomatic in 2005. In 2016, Mr T was living alone. Miss Q says he had deteriorated at an increased rate over the previous year.
- In August 2016 Miss Q contacted Adult Social Care at the Council to ask for help for Mr T. Miss Q says she asked the Council to call her rather than Mr T due to his limited mental capacity. The Council made a referral to the Assessment Technician Service (ATS) to assess shower and toilet transfers and it sent Miss Q information about hot meal providers and aids. The ATS contacted Mr T on 5 September to arrange the assessment, but Mr T declined to proceed. The ATS therefore closed the case.
- Miss Q contacted the Council again to ask for help in December 2016. The Council sent a referral form to Provide (a Community Interest Company providing a range of health and social care services in the community) on 25 January 2017.
- On 8 February 2017 a social worker visited Mr T to assess his needs. Miss Q said communication difficulties with Mr T and the social worker at this visit, and on further visits from this social worker, had a detrimental effect on Mr T. Miss Q said the Council referred Mr T for a CHC assessment after this visit.
- The CHC Team contacted the Social Worker several times between February and March 2017 to ask for a completed CHC Checklist and consent forms so it could consider the request for a CHC assessment.
- The social worker completed a CHC Checklist for Mr T on 27 February. The records show the CCG received this on 2 March 2017. The CCG ratified this as a positive Checklist on 29 March 2017.
- From 20 March 2017 the Council provided three hours of social care a day.
- In May 2017, Miss Q told the Council that Mr T had tried to slit his wrists twice in the space of a week.
- On 14 June 2017 Miss Q said Mr T had ‘an altercation’ with his carer. This led to the care agency withdrawing its services leaving Mr T without any care for 24‑hours.
- Miss Q discussed a placement at a specialist unit such as the Home with the Council given Mr T’s deterioration and his difficulties with the carers. Mr T was in agreement and Miss Q tried to arrange this. However, there was no place available until 19 June. The Council declined to fund the respite placement but put an interim package of care in place until he moved.
- Mr T moved to the Home on 19 June.
- Miss Q complained to the Council on 24 June 2017 about the lack of care and support for Mr T between August 2016 and June 2017. She also complained about delays with the completion of the CHC checklist. Miss Q sent a further letter to the Council dated 17 July 2017 as she had not had any response to her previous correspondence.
- The CCG completed a DST on 3 July 2017. The outcome was that Mr T qualified for CHC funding. The CCG confirmed this in writing to Miss Q on 9 August 2017. However, there were delays with the CCG reimbursing Mr T for the Home fees.
- The Council agreed to fund the placement ‘without prejudice’ in August 2017 until the CCG situation was resolved.
- Miss Q sent the Home invoices to the CCG by email on 20 September. This totalled £8750. The CCG confirmed it needed hard copies and also copies of corresponding bank statements showing the payments being made. The CCG received this on 26 September.
- The records show the CCG confirmed the calculations were completed by 2 October 2017 and it said a letter would be sent in the next 2-3 days. Miss Q sent a signed acceptance of the offer to the CCG on 7 October.
- The records show the CCG authorised the payment of £8811.58 on 25 October.
- Mr T died on 24 September 2017.
- The CCG reimbursed Miss Q for the Home fees on 9 November 2017.
Assessment of needs
- Miss Q complains the Council failed to properly assess and meet Mr T’s care needs between December 2016 and June 2017.
- The Council accepts it should have considered Mr T’s case as a priority when Miss Q contacted it in December 2016, given it was clear his condition was deteriorating. This means it should have assessed him in under 28 days.
- The Council referred Mr T for assessment following a telephone call with Miss Q on 29 December. A social worker was allocated and they completed an assessment on 8 February 2017. This was outside the Council’s own service standard, particularly as it has accepted Mr T should have been an urgent case.
- The records show the Council’s assessment was thorough and considered all relevant aspects of Mr T’s care needs in line with the Care Act. The Social Worker recommended an urgent package of care to be put in place to support Mr T and give his family respite and prevent a potential breakdown of the care they were providing. The Council identified suitable providers and the care package started 20 March.
- The Council has already acknowledged there was fault with the time taken to assess and implement a care package for Mr T. In terms of injustice, this is likely to mean Mr T did not have support in place as soon as he should have. It is evident Mr T’s family had been providing support and they continued to do so while the assessment process was completed. In this regard, Mr T did not suffer an injustice, but his family were caused additional inconvenience and distress. This is because the time needed to care for Mr T impacted on their own lives. They had asked for help as they were struggling to provide the care Mr T needed as his condition got worse.
- The records indicate that once the care package was in place, this mostly worked well for Mr T until around June 2017. Mr T’s mental health had appeared to worsen and on 14 June, the Care Agency reported that Mr T had been aggressive towards his carer. The Care Agency withdrew its carers with immediate effect.
- The Council reported Mr T’s increased psychotic episodes to his GP and psychiatrist. The Mental Health Team said they would visit the following day.
- The records show the Council contacted other care agencies on 15 June to provide urgent care. An alternative care agency agreed to start care visits the same day and continued until Mr T moved to the Home.
- Although some carer visits were missed, I consider this was beyond the Council’s control. It could not insist the care agency continued to visit after the altercation happened, but it arranged alternative support quickly. This minimised the risks and is not fault. However, the situation could potentially have been avoided had the Council intervened earlier.
- In May 2017 Mr T’s mental health appeared to deteriorate when he tried to take his life. Given this decline, it seems Mr T’s needs may have changed. This should have prompted the Council to review Mr T’s care needs. That the Council did not do a review was not in accordance with the Care Act and was therefore fault. The Council’s complaint response has acknowledged this was a missed opportunity to bring together social workers, the family and mental health professionals to consider how to support Mr T and manage risks.
- It is not possible to say what an earlier assessment would have found or whether the care package would have changed. Neither is it possible to say if the incidence would have been prevented or managed differently. However, this does create uncertainty, which has added to Miss Q’s distress.
Assessment for CHC
- Miss Q complains the Council and the CCG delayed assessing Mr T’s eligibility for CHC. She also complains the CCG delayed refunding care fees already paid by his family.
- The Council identified the need for a CHC Checklist early and sent a referral to the CCG. There was further correspondence sent between the CCG, Provide and the Council before the social worker completed a checklist on 27 February 2017. It appears there was a lack of clarity about responsibilities for each party and this led to delays in the completion of the CHC Checklist. This is fault.
- Following receipt of the checklist on 2 March 2017, the CCG did not complete the DST until 3 July. There was no obvious reason for the process taking longer. This is not in line with the National Framework and is fault.
- Once the DST was complete and the CCG established Mr T was eligible for CHC funding, Mr T was already residing at the Home. He was paying for the placement himself. The Council should have agreed to fund Mr T’s placement at the Home until the CHC funding decision was made and/or a financial assessment was completed. This did not happen until after Miss Q complained to the Council and told it they had ‘no funds left to pay for [Mr T’s] care at [the Home]’. This is fault. The Council did then agree to continue the funding from the end of June until the CHC assessment was completed. The Council has now accepted this was fault.
- The CCG did not reimburse the fees Mr T had paid until 25 October. Although there are no specific standards about the timeliness for reimbursement of fees, I consider from July until November to be unreasonably long, particularly as this was not in dispute. The CCG also failed to meet the 2-3 day timeframe it advised Miss Q of in correspondence dated 2 October. The delays in the CCG settling the financial arrangements with Miss Q is therefore fault.
- I have considered the injustice caused by the faults identified. The Council has accepted there was fault with delays with the completion of the CHC Checklist. I can see the Council tried to resolve this at the time with a visit to Mr T’s family and the checklist was completed with minimal further delay. At this point there was no issue with funding and the Council went on to fund Mr T’s social care. The impact of the Council’s fault on Mr T was therefore relatively minor.
- The Council’s complaint response to Miss Q also acknowledged there was poor cross organisational working and apologised. I consider this a proportionate outcome to this aspect of the complaint.
- The CCG’s response to the Ombudsmen’s enquiries acknowledges fault in it not following the correct process in administering the initial referral, and not monitoring the process. As noted above, the delays at this stage had minimal effect for Mr T, but the lack of information and delays in completing the checklist added to the family’s distress.
- Faults by the Council and the CCG left Miss Q in a position of financial hardship as she could not pay for Mr T’s funeral costs. The CCG has recognised failings in its administrative processes at various junctures that contributed to the delay in reimbursing the fees Mr T paid for his placement at the Home. The CCG said it is devising a process and tracking system for redress claims, to ensure that they are tracked through to completion in a timely manner in future. I consider this is a reasonable response to address the systemic failings in this part of the complaint. However, this does not address the injustice to Miss Q. She needed the money Mr T was owed to pay for his funeral costs and was going to have to pay interest on the fees if the bill was not paid. I note Miss Q told the CCG this in early October 2017. Although the CCG eventually repaid the money, the unreasonable delay clearly added to Miss Q’s distress at an already difficult time.
- Although the CCG has apologised for the failings and set out steps to improve services in its letter to the Ombudsmen, this has not been addressed directly with Miss Q. I have made recommendations to remedy this.
Care at the Home
- Miss Q complains about the quality of care provided to Mr T between 19 June and 24 September 2017. This includes staff not helping Mr T when his behaviour became intense due to his Huntington’s Disease and an unnecessary trip to the Emergency Department after Mr T trapped his finger in a door.
- Apart from the trip to the Emergency Department, Miss Q has not raised concerns about specific incidences about Mr T’s care. The records show Mr T’s GP prescribed him Lorazepam (used to treat acute anxiety and agitation by producing a calming effect) medication to take as required to manage his anxiety. Lorazepam can cause drowsiness as a side-effect. The records show the Home helped Mr T take all other regularly prescribed medication in line with its duties.
- The records show that due to his illness, Mr T often became agitated when staff could not act on his requests straight away. This included when he wanted a cigarette or something to eat or drink. The records contain several incidents when Mr T had shouted at, chased and/or hit out at staff or other residents. Mr T’s care plan included actions for staff to identify triggers for his behaviour and de-escalate incidents safely.
- The records show the Home gave Mr T Lorazepam on four occasions to help calm him. The records show it was clinically appropriate for the Home to give Mr T Lorazepam on these four occasions due to him being ‘restless’ and/or presenting with ‘demanding behaviour’. The Home also gave Mr T Lorazepam to calm him after injuring his finger. The records show Mr T was visibly calmer and more settled after having the medication. The records show Mr T’s hand needed medical attention due to bleeding. I do not consider it was fault for the Home to take Mr T to the Emergency Department to have his injury seen to.
- Miss Q also complained the Home called the police or mental health teams rather than helping him. The records do show the Home contacted the mental health team when Mr T’s behaviour became more challenging. This was appropriate and in line with NMC guidance given the symptoms Mr T was experiencing. The records show Miss Q had also raised concerns about Mr T appearing ‘delusional’. The records also show the Home consulted Mr T’s GP regularly due to concerns about Mr T’s mental health. It also noted concerns about the Home’s ability to safely manage Mr T given his apparent deterioration.
- The Mental Health Team did not consider he met the criteria to be treated under the Mental Health Act at that time. However, this does not mean the Home was wrong to seek advice from either Mr T’s GP or the Mental Health Team.
- The records also show the Home contacted the police following some incidents. This was not unreasonable as it is recorded Mr T caused others harm. The Home has a duty of care to all its residents, therefore when Mr T’s did display unacceptable behaviour that risked the safety of him and others. I note no further action was taken as the affected resident did not wish to take this further.
- The records show the Home used a variety of techniques to help manage and de‑escalate Mr T’s behaviour. This included care planning, supervision, medication and referral to other organisations for help when appropriate. I have not found fault in this regard.
- The following actions have been agreed to remedy the injustice caused by the faults identified in this case. Within one month of the date of the Ombudsmen’s final decision statement:
- The Council will pay Miss Q £300 to acknowledge the injustice caused by the faults in assessing and implementing a care package for Mr T and with the Council’s lack of review.
- The CCG will apologise to Miss Q for injustice distress caused by faults in delays to the CHC assessment and with the reimbursement of fees due to Miss Q/Mr T’s estate.
- The CCG will pay Miss Q £200 to recognise the injustice caused to Miss Q by the faults and for the time and trouble spent having to chase the payment at an already difficult time.
- The Council was at fault with the time taken to assess Mr T and implement a care package for him. This caused his family inconvenience and distress.
- There was no fault by the Council in relation to its actions following a care agency’s decision to stop visits. There was however fault in not reviewing Mr T’s needs sooner, when it was evident his needs may have changed.
- There was fault by the Council in not funding Mr T’s placement while CHC decisions were made and financial assessments were completed. This was put right at the time and the Council has apologised to Miss Q.
- The CCG was at fault with the completion of CHC checklists and a DST. It was also at fault with delays in reimbursing fees that Miss Q had paid. Miss Q had to chase the CCG for the money so she could pay for Mr T’s funeral costs. This caused Miss Q distress.
- The Home was not at fault in relation to the aspects of Mr T’s care Miss Q complained about.
- The Council and the CCG have agreed actions to remedy the injustices caused by the fault identified. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman