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Wiltshire Council (19 012 726)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 17 Mar 2021

The Ombudsman's final decision:

Summary: Ms C does not consider the Council adequately protected her mother, Mrs Z, which she says resulted in her not receiving the care she needed before she died. While there were a few instances when the care provided was not as it should have been, overall the care commissioned by the Council was adequate and in line with the court of protection approved care plans. The Council took safeguarding action when necessary. There is no fault in the actions of the Council, or the Care Provider acting on behalf of the Council which have caused unremedied injustice.

The complaint

  1. For confidentiality I refer to the complainant as Ms C and her late mother as Mrs Z.
  2. Ms C complains the care commissioned by the Council, for her mother was inadequate and led to her mother dying. The Council commissioned care from Berkeley Home Health. I have referred to them as the “Care Provider”.
  3. Ms C also complains the Council:-
      1. inappropriately restricted her and her family’s access to Mrs Z;
      2. did not properly safeguard Mrs Z;
      3. inappropriately considered the views of Mr X;
      4. did not properly investigate the legality of a Power of Attorney.
  4. Ms C considers her mother died prematurely because of the Council’s neglect. Ms C says the Council’s actions have caused her stress, time, and trouble.

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What I have investigated

  1. I have not investigated complaints 2(a), (c) and (d) for the reasons set out at the end of this statement.
  2. I acknowledge it was upsetting for Ms C to have limited contact and information about her mother’s care, and now that she has the records, she has concerns. But, the court of protection decided Ms C should have no control over her mother’s care support, and gave that control to relevant professionals and Mr X. I can look at what those professionals did, but cannot now remedy any injustice to Mrs Z as she has since died, and that limits what we can investigate and achieve. The professionals and Mr X raised no concerns about Mrs Z’s care support at the time.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
  • their personal representative (if they have one), or
  • someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

  1. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered documentary evidence and emails from Ms C and made enquiries of the Council. I considered the:-
    • Council’s response;
    • court of protection orders. The court of protection makes decisions on financial, or welfare matters for people who are unable to make decisions at the time they need to be made;
    • care records for Mrs Z;
    • care and support plans for Mrs Z;
    • safeguarding alerts and investigations.
  2. I applied relevant legislation including:-
    • powers of the Ombudsman, detailed above;
    • Care Act 2014 and the associated Care and Support Statutory guidance (CASS).
  3. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
  4. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. I have applied these regulations in this complaint.
  5. Ms C and the Council have had an opportunity to consider a draft of this statement. I have considered any comments made before making a final decision.

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What I found

Background information

  1. Mrs Z lived in the community with a companion, who I shall call Mr X. She had lived with Mr X for several years. Following a stroke Mrs Z needed support for all her personal and domestic care. The Council assessed Mrs Z as unable to make decisions about her care.
  2. Before Mrs Z’s death there was an ongoing dispute between family members about whether the Council should meet Mrs Z’s needs in the community with a support package or a residential care home. Some family members were unhappy about Mrs Z living with Mr X and alleged financial abuse.
  3. The Council and the professionals involved assessed it was in Mrs Z’s best interests to remain in the community with Mr X; supported by a care package. Due to the conflicting views the matter went to the court of protection.
  4. The court of protection agreed with the Council and approved a comprehensive care plan. It made an injunctive order restricting Ms C’s contact with her mother, and directly or indirectly several organisations and personnel including those from both the Council and care agency. It also restricted Ms C’s access to information about Mrs Z.

What happened

  1. Ms C has provided a year’s worth of daily care records ending when Mrs Z went into hospital. She has identified what she considers to be service failure. She also considers the Council did not provide support according to the care plan agreed by the court of protection. This includes:-
      1. allowing Mr X to provide personal care to Mrs Z;
      2. Mr X not providing medication properly;
      3. Mr X failing to call a GP when one was necessary;
      4. Mrs Z having periods where there were no staff to support her;
      5. failing to provide and monitor food and drink adequately;
      6. failing to monitor Mrs Z’s bowel movements properly which resulted in her being constipated and in pain for several days prior to her admission to hospital;
      7. allowing Mrs Z to spend time in a soiled pad for prolonged periods of time;
      8. an injury to Mrs Z from her wheelchair;
      9. failing to support Mrs Z to access outside activities;
      10. inappropriate manual handling by Mr X and care staff.
  2. For ease I have included additional detail about, “What happened”, when considering each complaint in the section “Is there fault causing injustice?” section below.

What should have happened

  1. I have considered the court of protection documents which say:-
    • There is consideration and recognition that there will be instances when Mrs Z will be left in a soiled pad as there was no overnight care. On weighing up Mrs Z’s best interests it decided that notwithstanding this the care package still served to meet Mrs Z’s best interests.
    • The court of protection documents considered Mr X to be an integral part of Mrs Z’s life. It said there is no evidence to suggest the Council took Mr X’s views to the detriment of what was in Mrs Z’s best interests. There was a host of professionals from different bodies involved at the time none of whom questioned the Council’s actions in terms of acting in Mrs Z’s best interests or inappropriately taking Mr X’s views.
  2. I have also considered the court of protection approved care plan which includes what care staff and other individuals/professionals should do.
  3. The care plan says:-
    • Mr X can support with meal preparation and supervision to maintain Mrs Z’s safety. This includes supervising Mrs Z when care staff are on a break;
    • at least weekly visits to access the community. If Mrs Z is not well enough then an alternative activity within the home can take place instead;
    • Mr X had received manual handling training and could act as a second person to help the care staff with transfers as a contingency that did not involve personal care.
  4. The Care Act says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
  5. The Council needs to decide whether to start safeguarding procedures. Through a strategy discussion or meeting it needs to decide what information is needed to investigate the alert and how it will gather the information. It needs to gather information from relevant professionals and once it has received information and evidence it needs to decide whether any abuse can be substantiated and whether a protection plan is needed.
  6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014:-
    • Regulation 13 – “Safeguarding service users from abuse and improper treatment”. The intention of this regulation is to safeguard people who use services from suffering any form of abuse or improper treatment while receiving care and treatment.
    • Regulation 17, says care providers should “maintain securely” records and should have “an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”.

Is there fault causing injustice?

Health responsibility

  1. District nurses visited Mrs Z daily and therefore had an overall view of Mrs Z’s health needs. They would be able to recognise and act on any changes in Mrs Z’s health and seek further health support if needed; whether that be from the emergency services, 111 or the GP. This context is important as whatever actions/inactions Ms C says occurred or are recorded, health staff at the time made no criticism of the care provided either by the care agency or Mr X.
  2. Health was responsible for Mrs Z’s medication and I am therefore unable to investigate issues related to medication further. Even if I were, there is nothing substantive to suggest Mrs Z was affected by the failure to receive appropriate medication.

General care

  1. There is a record that a member of staff “forced” personal care on Mrs Z. This is a potential breach of Regulation 13 “Safeguarding those using services from abuse or improper treatment”. I am however unable to say there is any unremedied injustice. The Care Provider took appropriate action in relation to the isolated incident. It is unlikely further investigation would achieve more than what the Care Provider has already done, and I am now unable to remedy any injustice to Mrs Z as she has died.
  2. On all other occasions there is no evidence to suggest that Mrs Z did not receive acceptable care or that medical care was not sought when needed. There are full care records which evidence the actions care staff were taking.
  3. The court of protection accepted there would be times when there were no paid care staff supporting Mrs Z, such as when they were on their break. I have found no evidence that Mrs Z was left alone or that she suffered because of not having someone to support her.
  4. Ms C has relied on daily care records of her mother’s care. These however are not a full set of records of the actions taken by the Care Provider and others at the time.

Failure to access outside activities

  1. The court of protection documents say Mrs Z should access a community based activity which includes seeing family members at least once a week. It recognises that Mrs Z can often feel tired and on those occasions care staff should offer an alternative activity indoors. There is no detail about what these indoor activities should entail.
  2. While the records provide information about when Mrs Z went out into the community there is less detail about when she was too tired to go out and the other activities offered. I consider care staff should have documented this more carefully and this is a potential breach of regulation 17 detailed above.
  3. However I do not intend to consider this further. This is because Mrs Z has now passed away and any injustice caused to her could not be remedied. Also I would be unable to say that care staff did not offer Mrs Z alternatives or indeed that at the time she wanted to engage with them. No concerns were raised by Mr X or any of the professionals involved at the time.

Manual handling

  1. There are various issues about manual handling. I have seen documents and Council recording which show professional involvement and the detail of its actions.
  2. It is clear from the recording that Mrs Z was at times in pain and that she had complex, fluctuating needs. However I am satisfied that the professionals involved acted properly and there was no undue delay in their actions.
  3. Ms C says there is evidence of Mr X’s inappropriate “handling” of Mrs Z. There are a handful of occasions when Mr X used a slide sheet. There is however no evidence that Mr X’s actions caused Mrs Z injury.

Involvement of Mr X

  1. Ms C says care staff were providing support to Mr X as well as Mrs Z but that he was not paying towards the care. She also says he provided personal care when this was Mr X explicitly prohibited by the court of protection.
  2. Care records say care staff completed domestic tasks which would have benefited Mr X as well as Mrs Z. This includes cleaning and making him drinks. There is also evidence that care staff spent time chatting with Mr X.
  3. I do not intend to investigate this further. This is because there is no evidence to suggest care staff’s actions caused Mrs Z injustice. There is no evidence that care staff did not complete tasks for Mrs Z. Mrs Z did not suffer a financial loss as her charge for services was less than the cost incurred by the Council. Many of the tasks or activities Ms C complains of are those associated with what people living in the same house would usually do, such as offering to make a cup of tea or having a chat.
  4. There is no evidence to suggest Mr X provided personal care to Mrs Z. No concerns were raised by professionals involved at the time. Even if I were to find fault, I would be unable to remedy any potential injustice to Mrs Z.
  5. Ms C says Mr X prevented Mrs Z from getting medical attention when she needed it. Health staff were supporting Mrs Z daily, if they thought Mrs Z needed further health support, they could have requested it. The fact they did not suggests that it is more likely than not Mrs Z did not need additional health support. Health staff were responsible for Mrs Z’s health needs, not Mr X.

Safeguarding

  1. The Council received safeguarding alerts about an incident where a wheelchair caused Mrs Z an injury and her condition when she entered the hospital. The Council investigated both these incidents through its safeguarding process. Both involved interviewing relevant people and reaching a conclusion as to whether it amounted to abuse or neglect.
  2. The safeguarding about the wheelchair identified that Mrs Z’s hand was accidentally trapped in the wheel. The Council and the Occupational Therapist (OT) involved took actions to consider ways of preventing recurrence. There was no evidence the incident was caused by poor care, malice, or neglect.
  3. Ms C is concerned that Mrs Z entered hospital after a long period of constipation. Indeed she entered hospital vomiting faecal matter. I understand this would be distressing for Mrs Z and her family.
  4. However I have considered the information provided and find no fault in the actions of the Care Provider in the management of Mrs Z’s constipation either at this time or from earlier incidents identified by Ms C.
  5. The Council thoroughly completed a safeguarding investigation into Mrs Z’s health on her admission to hospital. It obtained views, gathered and considered health and care records, and interviewed staff. Its investigation concluded there was nothing to suggest care staff should have been alerted to take any earlier actions.
  6. I am unable to criticise a professional judgement unless there is procedural fault in how the Council reached the decision. The safeguarding investigation was completed thoroughly and included views from professionals involved. The Council followed CASS as detailed above. There was nothing to suggest that care staff should have called an ambulance earlier. There was daily contact with nursing staff, 111 advice was obtained and followed.
  7. While I understand it is distressing for Ms C and her family that Mrs Z entered hospital in such poor physical health, I am unable to say the Council and those acting on its behalf should have taken any other action.

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Final decision

  1. I have now completed my investigation on the basis that I have found no unremedied injustice resulting from the actions of the Council or the Care Provider acting on behalf of the Council.
  2. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Parts of the complaint that I did not investigate

  1. The court of protection made specific orders about the visiting arrangements and restrictions. As these conditions were imposed by the court, I am unable to challenge or consider them. Ms C had an opportunity to challenge them at the time using the court process.
  2. The court of protection looked at the validity of a Power of Attorney. It decided that although there were mistakes made, those were not made maliciously and were not now relevant to the proceedings. I have not investigated this further as the court of protection did not consider it was relevant at the time. It is now too long ago to get information about whether the Council should have made further enquiries. Even if I were to investigate this element of the complaint, it is unlikely that I could reach a decision on whether Mrs Z or Ms C were caused any injustice by any potential failures.

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Investigator's decision on behalf of the Ombudsman

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