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Cambridgeshire County Council (17 010 333)

Category : Adult care services > Other

Decision : Upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: Cambridge County Council and Cambridge & Peterborough Clinical Commissioning Group worked together as the Cambridgeshire Learning Disability Partnership (the LDP). The Ombudsmen consider they were at fault for the lack of support for Mr Y’s needs between March and September 2016. Care providers did not meet Mr Y’s needs, which led him to gain a significant amount of weight, and caused Mrs X distress. Mrs X also suffered a financial impact at having to buy her son new clothes. The Ombudsmen consider the LDP should have done more when Mr Y refused to engage in the mental capacity assessment to decide his future accommodation. This fault has caused uncertainty and distress to Mrs X and Mr Y.

The complaint

  1. Mrs X complains on behalf of her son, Mr Y, about the actions of Cambridgeshire County Council (the Council), Cambridgeshire & Peterborough Clinical Commissioning Group (the CCG) and Cambridgeshire & Peterborough NHS Foundation Trust (the Trust). The Council and the CCG worked together as the Cambridgeshire Learning Disability Partnership (the LDP). Specifically, that:
    • On 10 March 2016, Mr Y gained access to a knife in his supported living accommodation, which led him to self-harm after an argument with staff.
    • On 15 March 2016, the LDP unnecessarily moved Mr Y to an unsuitable rehabilitation unit in Colchester from Nottingham.
    • The LDP put Mr Y on an unsuitable unit for low functioning autism (Elm Court), when he had moderate learning difficulties and Prader‑Willi syndrome.
    • The LDP delayed sending Mr Y back to his supported living accommodation.
    • The LDP did not involve her in meetings regarding his care.
  2. Mrs X says her son suffered significant distress and his anxiety was exacerbated by placing him in unsuitable accommodation. Also, he is too anxious to see a psychiatrist.
  3. Mrs X says she could not care for her own mother as she had to travel to and from Colchester between March and September 2016 to see her son. The travelling and buying new clothes for her son had a financial impact. Also, Mrs X said she had to pay half the cost of an independent assessment of Mr Y’s capacity to decide where he should live.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
  2. 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).
  3. 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.
  4. 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)

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How I considered this complaint

  1. I have considered the complaint information Mrs X has provided to me. I have asked the Council, the CCG and the Trust to comment on the complaint and provide supporting documentation. I have taken the relevant law and guidance into account.
  2. I have written to Mrs X, the LDP and the Trust with two versions of my draft decision and considered their comments.

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What I found

  1. The Care Act 2014 and related guidance and regulations explain the Council’s duties towards adults who require care and support.
  2. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
  3. The guidance says that, when a person has particularly complex needs, the assessor may need the support of an expert to carry out the assessment to ensure the person’s needs are fully captured. Where the assessor does not have the necessary knowledge of a condition, they must consult someone who has relevant expertise.
  4. When there is a change in a person’s needs the Council must review the assessment and care plan to ensure the care plan still meet the person’s needs.

The Mental Health Act 1983: Code of Practice (2015)

  1. Chapter 4.34 provides guidance on providing information to nearest relatives. Specifically, regulations require nearest relatives to be informed of transfers from one hospital to another.
  2. Chapter 36 provides guidance on changing a responsible clinician for section 19 transfers of patients. It says the existing responsible clinician should take the lead in identifying their successor to enable the move from one place to the next.

The Mental Capacity Act

  1. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this and how to make a decision on behalf of somebody who cannot do so themselves.
  2. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
    • because he or she makes an unwise decision;
    • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
    • before all practicable steps to help the person to do so have been taken without success.
  3. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  4. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
    • Does the person have a general understanding of what decision they need to make and why they need to make it?
    • Does the person have a general understanding of the likely effects of making, or not making, this decision?
    • Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
    • Can the person communicate their decision?
  5. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
  6. There may be circumstances in which a person whose capacity is in doubt refuses an assessment of capacity. In these circumstances, it might help to explain to someone refusing an assessment why it is needed and what the consequences of refusal are.
  7. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005. The safeguards provide legal protection for individuals who lack mental capacity to consent to decisions about their care, and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

Court of Protection

  1. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
  2. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection decides whether a person has capacity to make a particular decision for themselves.

Background

  1. Mr Y has Prader-Willi syndrome (PWS). This causes problems such as a constant desire to eat which can lead to dangerous weight gain. Mr Y lived in supported accommodation, with support from Agency C, who managed his food. Mr Y also suffers with autism and moderate learning disabilities.
  2. In August 2015, a mental capacity assessment showed Mr Y lacked capacity to make decisions about his food intake.
  3. The LDP completed Mr Y’s care plan in December 2015. It said:
    • Agency C will follow menus written by Mrs X;
    • Mrs X will help Agency C learn about PWS;
    • Agency C will attend dietician’s appointments with Mrs X; and
    • Agency C will provide 24-hour support, seven days a week.

Mr Y accessing the knife on 10 March 2016

  1. In January 2016 Mr Y used a knife to cut his wrists. He went to the Emergency Department at the Trust for treatment.
  2. The LDP later carried out a risk assessment as part of a safeguarding action plan. It was noted: “All staff have been notified through the communication book regarding the risk of knives and for these to be locked away immediately after use. Consideration of other items which may be used. [Agency C] are in the process of rewriting the risk assessments around knives”[sic].
  3. On 10 March 2016, Agency C staff returned from shopping and did not allow Mr Y to have food. Mr Y got angry and started cutting his wrists with a knife.
  4. In response to Mrs X’s complaint, on 30 June 2016, the LDP said Mr Y broke into the draw containing the knife. It could not have prevented Mr Y from self‑harming.

Analysis

  1. I do not consider the LDP were at fault when Mr Y gained access to the knife in March 2016. He had accessed one two months earlier and the LDP put a safeguarding action plan into place.
  2. Mr Y broke into the draw to get the knife in March 2016. This showed Agency C staff were putting knives away and locking them up. This was in line with the safeguarding action plan. I cannot see what more the LDP could have done to prevent Mr Y accessing the knife.

The decision to move Mr Y from Cedar Vale to Elm Court

  1. On 10 March 2016 Mr Y’s GP sought an urgent Mental Health Act (MHA) assessment following the incident where Mr Y broke a knife drawer and cut his wrists.. At that time Mr Y’s parents were on holiday in South Africa.
  2. On 11 March 2016, an approved mental health practitioner (AMHP) carried out the MHA assessment. Mr Y refused a voluntary admission to the Trust, so the AMHP detained Mr Y under section 2. He remained in the Emergency Department until the LDP found a suitable placement for Mr Y.
  3. Mr Y was transported by secure ambulance to an independent hospital (Hospital One) in the Midlands in the early hours of 12 March 2016. Hospital One was for men living with autism and provided support for people detained under the MHA.
  4. On 14 March 2016, the LDP was told by an independent hospital (Hospital Two) closer to where Mr Y lived that it could admit him.. The LDP wanted Mr Y close to his home. The responsible clinician at Hospital Once agreed to transfer Mr Y under section 19 of the MHA the next day. He moved the next day. Social Worker A updated Mrs X by email. She said: “I hope you have already been informed [Mr Y] will be transferred to ….Hospital Two. A clinical decision has been made that its best he is as near [local area] as at all possible [sic].” Social Worker A sent this before Mr Y moved to Hospital Two.
  5. Mrs X did not agree with the decision to move her son to the hospital. She said he was settling at Hospital One and nobody involved her in the decision. Social Worker A told Mrs X the responsible clinician’s (at Hospital One) should have told her about the transfer.
  6. On 30 March 2016, Mrs X raised her concerns with Hospital One’s responsible clinician. The responsible clinician said:
    • The team manager at the LDP was responsible for the section 19 transfer from Hospital One to Hospital Two;
    • Social Worker A acted on the AMHP’s behalf on 14 March; and
    • The code of practice states the LDP should involve her in the decision.
  7. In response to Mrs X’s complaint, on 30 June 2016, the LDP said:
    • It was the legal responsibility of the responsible clinician at Hospital One to communicate with Mrs X about the move;
    • It was in Mr Y’s interests to move closer to when Mr Y lived from Hospital One and the LDP agreed with the move;
    • It apologised for any distress caused to Mrs X in the decision to move her son to Hospital Two. The LDP said it felt it had tried its best to communicate with Mrs X.

Analysis

  1. The LDP started conversations between the two responsible clinicians at Hospital One and Hospital Two. This was to move Mr Y closer to Mr Y’s home.
  2. The responsible clinician at Hospital One was responsible for the deciding to move Mr Y to another hospital. I understand they were hesitant to move Mr Y. The responsible clinician could have decided not to transfer Mr Y if he felt it was not the right decision.
  3. Mrs X says the LDP were responsible for moving her son from Hospital One to Hospital Two. However, I have not seen evidence from the time to confirm this.
  4. The responsible clinician’s decision to move Mr Y is outside the Health Service Ombudsman’s jurisdiction. This is because the responsible clinician’s decision was made under the MHA, and not on behalf of the LDP. Even if the LDP’s psychiatrist sanctioned the move, it would still be out of our jurisdiction for the same reason, as he would be considered the responsible clinician under the MHA and the Health Service Ombudsman has no power to investigate such actions made under the MHA. However, I can consider how well the LDP communicated the move to Mrs X.
  5. I agree that the decision to move Mr Y was a clinical one. The next day Social Worker A confirmed, by phone, that the responsible medical offer at Hospital One had the responsibility of keeping her updated. I do not consider the LDP’s communication with Mrs X then was fault. The LDP also communicated with Mrs X about the move, despite it not being their responsibility to do so.

The suitability of Hospital Two

  1. During Mr Y’s stay on Hospital Two, Mrs X was unhappy staff were not trained on PWS, or had information about his specific diet. Also, Mr Y had put on a significant amount of weight. Social Worker A told Mrs X that staff were not specialists in PWS, but they were aware of their responsibilities.
  2. On 27 March 2016, Mr Y emailed the team manager to say he was unhappy on the ward where he was (Ward One). Specifically, he said he was not getting much exercise, putting on weight and found it hard to integrate with the others on the ward. Two days later, on 29 March 2019, the hospital moved Mr Y to Ward Two as it was more suitable for his needs.
  3. In April 2016, Hospital Two applied for a DoLS based on the August 2015 capacity assessments for food intake. However, this was later rescinded.
  4. In May 2016, Hospital Two said Mr Y was not in the right place for his PWS.
  5. In response to Mrs X’s complaint, in May 2016 Hospital Two said:
    • When Mr Y arrived he was an emergency referral, so there was no time to review its suitability.
    • It agreed Ward One was not suitable for his needs and as soon as there was a bed free on Ward Two it moved him there.
  6. Also in response to Mrs X’s complaint, in June 2016, the LDP said Ward One was not suitable for Mr Y’s needs so he moved to Ward Two two weeks later.
  7. In July 2016, Hospital Two said it was struggling to support Mr Y and he was gaining weight. It agreed to complete a capacity assessment for food intake.
  8. After a meeting with the hospital on 9 August 2016, Social Worker B asked for Mr Y’s care plans. She noted:
    • The care and support plans were appropriate and Hospital Two were following them;
    • The care and support plans said Mr Y did not have capacity for food intake and needed limits in place;
    • A nurse on Ward Two was unsure how the 14 April DoLS application was progressing. However, care plans recognised Mr Y needed limits to safeguard him; and
    • The nurse also said Mr Y did not have access to food or the kitchen.
  9. On 19 August 2016, the nurse on Ward Two told the LDP a DoLS was not in place for Mr Y on food.
  10. On 7 September 2016, the hospital applied for an urgent DoLS to restrict Mr Y’s access to food. Social Worker B also met with Mrs X. Mrs X raised concerns about Mr Y’s weight and the hospital’s inability to meet his needs. Mrs X later told the LDP the placement is “killing him” as he had recently put on over a kilogram a week.
  11. The next day (8 September 2016) Social Worker B told Hospital Two she thought a DoLS was already in place for Mr Y. The hospital said there was no DoLS in place and Mr Y had been accessing the kitchen. This was because he wanted to have the same access as other patients at the hospital. The hospital agreed to move Mr Y to a ward with a locked kitchen. However, Mr Y refused to move so stayed where he was. The same day, Hospital Two gave notice of placement to the LDP and Social Worker B made a referral to local safeguarding.
  12. On 10 September 2016, an AMHP assessed Mr Y as not having capacity around his care and treatment at Hospital Two.
  13. In October 2016, Mrs X told the LDP that Mr Y had lost 10kg since he had been at the family home.

Analysis

  1. I agree with Mrs X, Hospital Two was not meeting Mr Y’s needs on Ward One. This was fault. The LDP accepted Ward One was not suitable for his needs and apologised. It said Hospital Two moved him to Ward Two as soon as possible because it was more suitable for his needs.
  2. However, I do not consider Ward Two was more suitable for Mr Y’s needs. Hospital Two could not provide the support he needed in his care plan. Mr Y was accessing the kitchen and put on a significant amount of weight by September 2016. This was also fault. Hospital Two made it clear to the LDP during Mr Y’s admission staff could not support his needs. The LDP should have done more to support Mr Y’s needs.
  3. I do not consider there were any issues with Mr Y’s care plan. The LDP simply did not ensure the hospital was following it. It would have been clear that Mr Y was putting on weight, and the LDP should have raised this with staff at Hospital Two. When Mr Y moved to the family home in September 2016, he lost weight when Mrs X started managing his diet.
  4. The lack of a DoLS to restrict Mr Y’s access to food was a reason for the fault. While the hospital applied for the DoLS in April 2016, no one has been able to explain why this was not authorised by the Council.
  5. The LDP was responsible for Mr Y’s care and support as commissioner of the service. The fault caused Mr Y to gain a significant amount of weight while he was at Hospital Two. I understand how this would have increased his anxiety. This also caused distress for Mrs X, and she had buy new sets of clothes for her son. The LDP needs to do more to remedy the injustice Mr Y and Mrs X suffered.

The LDP delayed sending Mr Y back to his supported accommodation

  1. Between March and September 2016, the LDP repeatedly told Mr Y it could not support him or agency staff at his previous supported accommodation. However, Mr Y was insistent he wanted to return there and refused to consider other choices. The LDP wanted to complete a capacity assessment to see if he could decide where he should live, however Mr Y also refused to engage with those assessments.
  2. In August 2016, the LDP met with Hospital Two. It said there was no legal basis to restrict Mr Y. A month later, when Mr Y went to visit his parents at the family home, Hospital Two told the LDP it would only allow Mr Y to return if he was placed under section of the MHA.
  3. On 16 September 2016, Mr Y employed a solicitor who sent a letter before action to the LDP. They asked for information about Mr Y’s capacity to decide where he lived because Mr Y and Mrs X were unsure if he had capacity. Social Worker B gave the LDP’s solicitor reasons why Mr Y’s previous accommodation was unsuitable. However, she agreed it was “technically” still an option.
  4. On 30 September, the LDP’s solicitor said:
    • The LDP had been unable to carry out the capacity assessment due to his parents not allowing access to Mr Y;
    • Given the difficulties in assessing capacity, the LDP may have to rely on previous assessments to support the belief that Mr Y lacked capacity;
    • The LDP must identify and consider all options available for Mr Y, including his parents preferred option, and take a view which was in Mr Y’s best interests;
    • His parents had contacted two providers who could provide support to Mr Y at his supported accommodation, including Agency J;
    • The capacity assessment should not stop the LDP providing interim support to Mr Y;
    • The LDP had not provided interim support since 20 September; and
    • There may be inconsistencies in the LDP’s assessment of Mr Y’s capacity.
  5. The same day the LDP sent an email to all approved care providers in the area to arrange an urgent interim care package for Mr Y. This included Agency J.
  6. On 5 October 2016, Agency J told the LDP it was not experienced with PWS, but it wanted to introduce training for staff about it.
  7. On 10 October 2016, Agency J offered to provide the urgent interim care for Mr Y. The next day, the LDP accepted Agency J’s offer and agreed to complete care and support plans.
  8. On 19 October 2016, the LDP completed Mr Y’s care and support plan, which included 40 hours support per week from Agency J. Between October 2016 and January 2017, Mrs X and the LDP went back and forth making changes to Mr Y’s care and support plan.
  9. In November 2017, the LDP and Mr Y’s solicitors jointly requested a report from an independent expert in mental capacity assessments and PWS. The expert would address if Mr Y had capacity to decide where he should live. This was because neither side could agree if Mr Y had capacity or not. The cost of the report was split between the LDP and Mrs X.
  10. On 5 January 2017, a solicitor for the LDP said:
    • The independent expert found Mr Y lacked capacity to make decisions about his care and treatment. However, he did have capacity to decide where he wanted to live.
    • Mr Y wanted to live independently and this should be considered as an option.
    • Mr Y should be supported to live in a single service provision with support to meet his needs, if the LDP do not contest the expert’s findings.
  11. On 13 January 2017, Mr Y’s solicitors asked the LDP to arrange support from Agency J at his previous accommodation, based on comments by the independent expert.
  12. On 31 January 2017, Social Worker B met with Mrs X and Agency J. She noted:
    • The LDP panel agreed to fund more support for Mr Y;
    • The LDP were commissioning a package of care for Mr Y at his previous accommodation with Agency J.
  13. In March 2017, Mr Y moved back to his previous supported accommodation with support from Agency J.

Analysis

  1. Before the LDP could decide what was in Mr Y’s best interests, it needed to ensure he lacked capacity to decide where he should live.
  2. I consider the LDP made reasonable attempts to complete the capacity assessment. The LDP could not force Mr Y to undergo a capacity assessment.
  3. However, before Hospital Two served notice to Mr Y in September 2016, the LDP should have done more to complete the capacity assessment. It could have either:
    • Made a balance of probabilities capacity assessment decision
    • Referred the matter to the Court of Protection to decide whether Mr Y had capacity to decided where he should live.
  4. The LDP should have proceeded with either of those two alternatives above when it was clear Mr Y would not engage. The LDP considered completing the capacity assessment without Mr Y’s input. However, it did not complete the assessment or refer the case to the Court of Protection.
  5. We will not know, if the LDP had completed a balance of probabilities capacity decision, what the outcome of it would have been. Or how the Court of Protection would have decided. This has caused Mr Y and Mrs X uncertainty and distress at not knowing if Mr Y could have returned to his supported accommodation sooner.
  6. The LDP requested Mrs X pay half toward the cost of the independent capacity assessment. Had the LDP not acted with fault, she would not have had to pay this. The LDP needs to remedy the injustice Mr Y and Mrs X suffered.

Meetings about Mr Y’s care

  1. I consider the LDP involved Mrs X in meetings about Mr Y’s care and treatment. I have seen evidence Social Workers A and B invited Mrs X to meetings about her son’s care. I understand Mrs X was unhappy with the result of some of the meetings. This did not mean the LDP did not include or consider her thoughts.
  2. The LDP’s evidence showed it kept in frequent contact with Mrs X, and overall, responded to her questions in a timely manner. I do not consider the LDP acted with fault.

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Recommendations

  1. Within one month of the final decision, the LDP should:
    • Apologise to Mr Y and Mrs X for the fault identified;
    • Pay £500 to Mr Y to address the distress he encountered because of the significant weight he put on caused by Hospital Two’s lack of support for his needs;
    • Pay £150 to Mrs X to address the costs she incurred buying new sets of clothes for Mr Y, after his significant weight gain;
    • Reimburse Mrs X the cost she paid towards the independent expert’s capacity assessment of Mr Y; and
    • Pay £250 to both Mr Y and Mrs X to address the uncertainty and distress caused by not making a balance of probabilities decision, or referring the case to the Court of Protection regarding Mr Y’s capacity.
  2. Within three months of the final decision, the LDP should:
    • Ensure care providers are aware of their duties when managing DoLS applications and the process for raising concerns to the LDP;
    • Ensure LDP staff are conscious of their duties when they become aware someone’s care and support needs are not being met; and
    • Reviews its policy/procedures so staff are clear what they should do when someone repeatedly refuses to engage in capacity assessments.

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Final decision

  1. The LDP was not at fault when Mr Y broke into a draw to access a knife he later used to self-harm.
  2. The LDP was not responsible for communicating with Mrs X about Mr Y’s section 19 transfer between independent hospitals in Nottingham and Colchester. I do not consider the LDP’s communication with Mrs X about the move was fault.
  3. Hospital Two, acting on behalf of the LDP, did not meet Mr Y’s needs during his stay and the LDP should have done more to ensure the hospital followed his care and support plan. This fault led Mr Y to gain significant weight over six months and caused distress to Mrs X.
  4. The LDP should have done more when Mr Y refused to engage in the capacity assessment to decide his future accommodation. This was fault. It caused Mr Y and Mrs X uncertainty and distress at not knowing if Mr Y could have returned to his supported accommodation sooner.
  5. I consider the LDP involved Mrs X in meetings and considered her views on Mr Y’s care and support.
  6. During my investigation, I have identified that the Trust was not responsible for any of the actions or decisions Mrs X complains about.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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