The Ombudsman's final decision:
Summary: Mr X complains about the Council’s handling of safeguarding concerns over his mother receiving a COVID-19 booster vaccination against his wishes. The Council has failed to ensure the safeguarding enquiries are concluded, which has left Mr X unsure whether the same thing could happen again. The Council needs to apologise, complete the safeguarding enquiries and take action to prevent safeguarding enquiries being allowed to drift in future.
- The complainant, whom I shall refer to as Mr X, complains about the Council’s handling of safeguarding concerns over his mother receiving a COVID-19 booster vaccination, which he says has left him unsure whether it could happen again.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
How I considered this complaint
- I have:
- considered the complaint and the documents provided by Mr X;
- discussed the complaint with Mr X;
- considered the comments and documents the Council has provided;
- considered the Ombudsman’s guidance on remedies; and
- invited comments on a draft of this statement from Mr X, NHS England and the Council, for me to consider before making my final decision.
What I found
- Mr X’s mother, Mrs Y, is blind and has dementia. She lives in a care home which another local authority helps pay for. Mr X has power of attorney for her health and welfare, which means he can make such decision in her best interests under the Mental Capacity Act 2005.
- Mrs Y had a ministroke after she had her second COVID-19 booster. Mr X told the care home she should not have another booster.
- Staff from an NHS GP Practice visited the care home on 24 September 2022 and gave Mrs Y a third booster. The care home told Mr X about this two days later.
- Mr X raised safeguarding concerns with the Council on 28 September. He provided evidence that he had told the care home he did not want his mother to have another booster. He pointed out that because of her dementia, his mother could not give informed consent for medical treatment. He said there had been no best interest decision (under the Mental Capacity Act 2005) to justify giving her the booster.
- The Council asked the GP Practice to make enquiries into the safeguarding concerns on its behalf.
- In November NHS England wrote to Mr X in response to a complaint he had made. It also sent him a letter from the GP practice which included an apology for the distress caused by the incident. NHS England said:
- the care home had told the GP Practice Mrs Y did not want the second booster but it did not have a copy of her power of attorney in its records;
- the GP Practice accepted it had failed to act on the information given to it;
- the power of attorney was now in Mrs Y’s records;
- in future the GP Practice would visit care homes before vaccinating residents to check it had up-to-date information, including a list of residents with a power of attorney in place;
- if it did not receive the appropriate documentation, the GP Practice would not vaccinate someone; and
- some concerns had been raised about the care home, which Mr X could take up with the care home or the local authority funding his mother’s care.
- The Council says staff have updated Mr X on progress with the enquiries on:
- 27, 28 and 29 September
- 3 October
- 2 December
- 5, 6 and 12 January 2023
- 9 and 24 February
- 27 March, when it told him it was still waiting for a response from NHS England
Mr X does not have a record of all the contacts the Council claims to have made.
- The Council has not completed the safeguarding enquiry as it is still waiting for the GP Practice to produce a report. In June the Council told us it would be chasing this up with NHS England - but that was a mistake as it needed to contact the GP Practice - and would update Mrs Y’s family.
Is there evidence of fault by the Council which caused injustice?
- A council must make (or cause to be made) enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
- While the Council can ask other bodies to make safeguarding enquiries on its behalf, it remains accountable for the safeguarding process and any failings by the bodies acting on its behalf (see paragraph 5 above).
- The GP Practice has not provided the Council with a report on the safeguarding enquiries. It appears it largely completed its enquiries in November 2022, around the time NHS England responded to Mr X’s complaint and told him what action the GP Practice was taking to prevent a repetition of the problem. It is not clear why the GP Practice did not produce a report for the Council in November 2022.
- The Council compounded this error by allowing the matter to drift and not chasing the GP Practice for its safeguarding report. It mistakenly believed it had asked NHS England to deal with the safeguarding concerns. While there is no evidence this has caused harm to Mrs Y, it has left her family unsure whether all the safeguards are in place to prevent a repetition of the problem. That is an injustice which warrants an apology. The Council also needs to ensure the safeguarding enquiries are completed.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the GP Practice and the Council, I have only made recommendations to the Council.
- I recommend the Council:
- within four weeks writes to Mr X apologising for the delay in completing the safeguarding enquiries and completes them; and
- within eight weeks identifies the action it is going to take to ensure safeguarding enquiries are not allowed to drift and are brought to timely conclusions.
- The Council has agreed to do this. It should provide us with evidence it has complied with these actions.
- I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.
Investigator's decision on behalf of the Ombudsman