Rochdale Metropolitan Borough Council (17 002 211)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 14 May 2018

The Ombudsman's final decision:

Summary: The Council failed to respond promptly to concerns raised about the care home Mrs Y resided in. It also failed to ensure the care home responded to its action plan. The Council took too long to complete a safeguarding investigation. It also failed to address with the care home that prohibiting Mrs Y from access to her family amounted to a deprivation of her liberty.

The complaint

  1. Mrs X complains Beechwood Lodge care home banned her from visiting her mother, Mrs Y, because she complained about the quality of care provided to Mrs Y. Mrs X says the care home made false allegations about her conduct at the care home.
  2. Mrs X complains a safeguarding investigation undertaken by the Council about the above matters were not dealt with in a timely manner.

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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. 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 have:
  • considered the complaint and discussed it with Mrs X;
  • considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
  • made enquiries of the Council and considered the responses, including records from the care home;
  • taken account of relevant legislation;
  • offered Mrs X and the Council an opportunity to comment on a draft of this statement.

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What I found

  1. Section 1 of the Care Act 2014 requires a local authority to promote individual wellbeing in all it does including ‘protection from abuse and neglect’. The Act holds that local authorities are the lead safeguarding agencies and are generally the first point of contact for raising concerns. Every local authority must have a Safeguarding Adults Board that includes a range of local organisations.
  2. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42).
  3. I have summarised relevant parts of the Council’s safeguarding policy below:
  • Section 42 enquiries has the following stages: initial discussions, assessing risks, agreeing actions for agencies to take, protection plan, review and closure. Not every case goes through every stage.
  • Attendance at meetings limited to those who need to know and who can contribute to the decision-making process.
  • Regular feedback to the service user/advocate and their outcomes reviewed at regular intervals throughout the enquiry process.
  • Evaluation of outcomes with family/advocate. Enquiry cannot close until the adult feels their outcomes have been achieved.
  1. In November 2016, the Care Quality Commission produced Information on visiting rights in care homes. This includes a section on what a care provider can do if it believes a visitor poses a risk to other residents, staff or to the running of the service. It says:
  • “…if issues or conflict develops, the care provider should first meet with the visitor and try to resolve them. Conflict between the provider and a family member or friend may be detrimental to the wellbeing of the resident. If the visitor has concerns about a resident’s care, these should be acknowledged, understood and acted on”.
  • “Care homes have a duty to protect people using their services. If issues cannot be resolved, as an extreme measure the provider may consider placing some conditions that restrict the visitor’s ability to enter the premises if, for example, they believe (having sought advice from others, like the safeguarding team) that the visitor poses a risk to other people using the service and staff, or to the running of the service. For example, the provider could limit visits to take place in the resident’s room only. Any conditions should be proportionate to the risks to other people or staff and kept under review. The provider must be able to demonstrate that any conditions are not a response to the visitor raising concerns about the service as this would be a breach of the regulations. The provider should seek advice from the local authority’s Deprivation of Liberties team if the resident lacks capacity to make decisions”.
  1. The Health and Social Care Regulations 2014 state that peoples’ relationships with family and friends should be respected and they should be supported to maintain relationships.

What happened

Safeguarding

  1. Mrs Y is 91 years old. She has dementia. She lived at Beechwood Lodge (the care home) between 2015 and 2017.
  2. In July 2015 Mrs X began having concerns about the level and quality of care provided to Mrs Y and other residents. Mrs Y’s mental and physical health appeared to have deteriorated.
  3. Mrs X complained directly to the care home, and to the Council in July 2015.
  4. The records show a social worker discussed Mrs X’s concerns directly with the care home. The crux of the problem being Mrs Y’s refusal to take medication, and the impact on her mental health. The care home and the Council made enquiries with Mrs Y’s GP about administering medication covertly. A meeting was held with Mrs Y’s GP, Mrs X and care staff where it was agreed medication could be administered covertly.
  5. In September 2016, the records show the care home contacted the Council to say it was having difficulties meeting Mrs Y needs and to request a social worker be allocated. A referral was made to a psychiatric nurse and a specialist assessment was completed. This concluded Mrs Y needed residential dementia care, and that these needs could be met by the care home.
  6. Following this, two NHS mental health professionals provided support and advice to care staff about caring for Mrs Y. This ended because the professionals believed that care staff were not taking their advice. One of the mental health professionals contacted the Council to report concerns about the administration of Mrs Y’s medication. Some care staff were not following the covert medication administration plan, which meant Mrs Y was sometimes not receiving pain medication. It was also reported that the care home was not providing Mrs Y with social stimulation, and consequently Mrs Y was agitated. General concerns about the care home, which had previously been discussed with the Council, were also reiterated.
  7. A social worker also reported that the family had raised a few issues with the care home…”. The social worker contacted the care home. The care home confirmed it was aware of Mrs X’s concerns.
  8. Mrs X contacted the social worker to say she was having a meeting with the care home manager on 7 October 2016. The social worker advised Mrs X to complete a statement of any issues that she will have regarding the care home so that I can pass this to Commissioning and possibly complete a safeguarding alert”.
  9. Mrs X and her sister met with the care home manager. The manager agreed to put an action plan in place to address the issues raised. Mrs X says there was no improvement. Towards the end of October 2016, she contacted the social worker again to report her concerns. The social worker said she would investigate and complete a safeguarding alert. The social worker recorded “information passed to… area manager”.
  10. The records show the social worker sought advice from an area manager, following which she arranged a meeting with Mrs X and her sister on 2 November 2016. At this meeting Mrs X and her sister reiterated their wish to raise a safeguarding alert. The Council’s area manager told Mrs X a safeguarding alert would be completed.
  11. A safeguarding alert was raised on 7 November 2016. I have seen a copy of the Council’s ‘Strategy (Enquiry) record. This records Mrs X’s concerns and highlights that communication between Mrs X and the care home was poor, and that the care home would not allow Mrs X access to Mrs Y’s ‘paperwork’. The Council decided the concerns needed further investigation. The records show the Council intended to share information with the Care Quality Commission (CQC), and the Clinical Commissioning Group (CCG). It was agreed the social worker would speak with the care home manager to establish what action it intended to take to address the issues.
  12. As part of the safeguarding enquiries the Council completed a ‘Risk assessment Record’ on 21 November 2016. Mrs X and her sister contributed. I have seen a copy of this document. The report highlighted that Mrs Y had cognitive impairment and was supported by Mrs X and her sister. Risks around medication, inadequate personal care and lack of social stimulation were recorded. Mrs X believed a move to a different care home would be detrimental to Mrs Y’s wellbeing. The ongoing risk to Mrs Y is recorded as high. The agreed actions were, review to be completed, safeguarding form to be completed by the care home, inform the Council’s Commissioning Team of concerns about staff levels and safety at night.
  13. The care home manager completed a ‘Provider report for Safeguarding Enquiry’ on 22 November 2016. I have seen a copy of this report. This shows carers failed to completed bowel movement charts and medication charts, specifically when Mrs Y refused medication. The report concluded “all seniors who administer medication have received verbal warnings”. Training of care staff was identified as a need.
  14. Between November 2016 and February 2017, the social worker coordinated specialist assessments of Mrs Y, including an assessment by the NHS for Continuing Health Care (CHC), which showed Mrs Y was eligible for a NHS contribution towards the nursing element of her care from 22 February 2017. The social worker also, along with Mrs X, looked for an alternative care home for Mrs Y. Mrs Y moved to different care home towards the end of February 2017.
  15. The next recorded entry is 1 June 2017, when the social worker sent an email to the care home manager of Beechwood Lodge, with a “request for professional involvement since I have not received this. Awaiting response”.
  16. There is a further entry dated 8 June 2017, in which the social worker records the care home “did not complete referral regarding falls”.
  17. The safeguarding case conference was held in July 2017. Mrs X and her sister were present. The Council held a further meeting in August 2017. The owner and the manager of the care home attended, along with Mrs X and her sister. Senior council officers were also present. I have seen a copy of the minutes. The notes are comprehensive and show the comments of all attendees. The investigation substantiated two elements, one relating to medication management and the other, relating to omission to act on injuries and falls. Four aspects were unsubstantiated, and one relating to organisational abuse was inconclusive.
  18. During the meeting, an officer from the Council’s Commissioning Team reported concerns about the care home. An annual inspection of the care home completed in April/May 2016 had given cause for concern, this included medication errors. An action plan was produced which set out the improvements needed, the council officer said the care home had not returned the action plan. The officer also reported the concerns expressed by the CCG and mental health professionals.
  19. The Council invited comments from Mrs X and the care home about the findings. Mrs X believed there was evidence of organisational abuse. The owner of the care home did not agree with any aspects which were substantiated.
  20. Mrs X says the Council did not provide her with any feedback during the safeguarding investigation, nor did it inform her about what action it had taken in response to the findings. Mrs X says in the end the Council did investigate the claims she made, but it took a year and a lot of chasing from her.
  21. In the Council’s complaint response to Mrs X dated 5 July 2017, it says “I do acknowledge that upon review of the case notes that Adult Care could have been more proactive in ensuring that specific information should have been disseminated back to family members in relation to the safeguarding and this should have been in written context in order to keep [Mrs X] and family members informed of the progress of the safeguarding enquiry”.
  22. The Council also explained its responsibility to review and monitor care homes it commissions services with, and as part of this it undertakes “quality assurance visits which will address thematic areas in a home and this will require action plans, when there are improvements required”. The letter goes on to say, “I am not able to give specific examples as to any of the above action been taken in relation to Beechwood Lodge”.
  23. The Council closed the safeguarding process on 25 October 2017. I have seen a copy of the closure document. This says Claims regarding organisational abuse have been addressed” It does not explain how or when. Under the ‘feedback section it records “To be completed with the individual or their advocate at the end of the safeguarding process…”.

Ban of Mrs X visiting Mrs Y

  1. On 8 December 2016 Mrs X arrived at the care home with her sister, she was met by an employee who gave her the letter informing her she was banned from visiting Mrs Y. Mrs X and her sister were refused entry to the care home. Mrs X says she and her sister walked to the car park, when they looked back a number of care staff were watching her.
  2. Mrs X says she is 67 years old and although she was emotional about her mother’s situation she has never been abusive in her life. Mrs X is particularly distressed about the allegation she had threatened to throw a brick through the care home window.
  3. Mrs X informed the Council about the ban and the allegations on 14 December 2016.
  4. The Council says it did not receive any information from the care home about improper conduct by Mrs X. The Council says “[the social worker] has confirmed the family have advocated for [Mrs Y] extremely well throughout the process…”.
  5. A senior officer of the Council and social worker met with the care home manager on 15 December 2016 to discuss the ban. The records show the Council informed the care home it had acted contrary to the Council’s guidance, and it should have consulted the Council before imposing the ban.
  6. The ban was lifted.

Analysis

Safeguarding

  1. There are several aspects of the complaint which require consideration. Whether the Council responded appropriately to the safeguarding alert, if the process to investigate the concerns was timely and proportionate, and the action it took following the conclusion of the investigation.
  2. The Council was aware of concerns about the care home from April 2016. An action plan was agreed with the care home. The Council says the care home failed to respond. The Council took no action to chase the care home. This is fault. This should have given the Council cause for concern. It should have taken a proactive and firm approach in seeking a response from the care home. It failed to do this.
  3. At that time, the Council did not know the full extent of the events complained about and if there was a possible risk to other vulnerable residents at the care home.
  4. This may have had grave consequences had other residents been at risk.
  5. The Council was slow to act when Mrs X reported her concerns. Mrs X had been complaining about the care since July 2016. In October 2016, the social worker asked Mrs X to provide a statement of her concerns so she could determine if a safeguarding alert was required. By then Mrs X had been expressing concerns for three months, given the intelligence the Council already had about the care home it should have commenced safeguarding immediately. The Council did not do so until 7 November 2016, and this was after Mrs X had again repeated her request. This is fault.
  6. The Council did not conclude the safeguarding investigation until October 2017. While there are no statutory timescales for completing such enquires, the expectation is for enquiries to be completed in a timely fashion. There was no good reason for the Council’s enquiries to take eight months, before a case conference was held. The time taken to complete the enquiries caused injustice to Mrs X and her family by prolonging the uncertainty. It was eleven months before the Council closed the safeguarding investigation. Again, there is no good reason why.
  7. I have considered the documentary evidence supplied by the Council as part of its safeguarding investigation. I am satisfied the Council considered all the issues Mrs X raised as part of its safeguarding investigation. There is no fault here.
  8. The Council accepts there were problems with the enquiries in terms of communication throughout the safeguarding investigation.

Ban on Mrs X visiting Mrs Y

  1. People should be able to make complaints on behalf of others. They should be confident that this will not lead to unjustified responses such as being banned from seeing the people who they complain on behalf of.
  2. Mrs X refutes that she had been unreasonable in her approach or that she had caused alarm by making threats. The Council says Mrs X “advocated extremely well…”. This suggests Mrs X acted appropriately.
  3. Mrs Y is a vulnerable adult dependent on others to provide for her and, in respect of decisions for which she does not have capacity, to act in her best interests. Mrs Y wants to see her daughter and she plays an important role in her life. The ban made it difficult for Mrs X to act as Mrs Y’s representative.
  4. Family are entitled to raise concerns about the care provided to their relatives. If a residential home finds that this becomes onerous or repetitive, it is possible to appoint a single point of contact and for the home to devise a communication strategy to manage this. Banning the relative from the premises should, as the CQC highlights, only occur in a small number of cases.
  5. The CQC also states that visiting someone in a care home lets family and friends see how they are being cared for. This is an important safeguard.
  6. All health and social care providers should have a procedure for dealing with feedback and complaints. People should feel confident that complaining will not cause problems for them or the resident. Where there are justified concerns that a visitor might cause a risk to other service users, care homes should try the least restrictive option. Any conditions should be proportionate and kept under review.
  7. I have seen no evidence which suggest Mrs X behaved in the way the care home alleged. The care home acted wrongly in banning Mrs X. In doing so it deprived Mrs Y access to her family. This amounts to a deprivation of Mrs Y’s liberty. It also caused distress to Mrs X, who understandably feels offended by the allegations.
  8. Although the Council is ultimately responsible for the decision by the care home to ban Mrs X from the premises, it was unaware of the ban for six days. Once it was made aware it acted. However, it failed to explain to the care home the gravity of its actions and the legal implications for depriving Mrs Y of her liberty.

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Agreed action

  1. The Council has agreed to take the following actions within one month of the final decision:
  • write to Mrs X apologising for the distress she was caused by the ban;
  • apologise for the prolonged safeguarding investigation and pay Mrs X £250 in recognition of the uncertainty this caused;
  • pay Mrs X £350 for distress and inconvenience caused to her by the events and in making the complaint to the Care Provider and the Ombudsman;
  1. Within twelve weeks the Council will:
  • tell me what action it is taking to ensure safeguarding enquiries are completed in a reasonable timescale and to the required standard;
  • tell me what steps it is taking to ensure that adequate quality of care is being provided to all residents at the care home;
  • tell me how many residents are in commissioned places (fully or part funded) and that reviews are being completed to ensure needs are being met;
  • provide me with evidence that shows it has informed the Care Quality Care Commission of any breaches of the Fundamental Standards by the Care Provider.

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Final decision

  1. There is evidence of fault by the Council causing injustice. The Council failed to respond promptly to concerns expressed by Mrs X and professionals, about the care home. It also failed to ensure the care home responded to its action plan.
  2. The Council took too long to complete the safeguarding investigation. It also failed to address with the care home that prohibiting Mrs Y from access to her family amounted to a deprivation of her liberty.
  3. The recommendations above are a suitable way to settle the complaint. It is on this basis the complaint will be closed.
  4. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I intend to send it a copy of the final decision statement.

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Investigator's decision on behalf of the Ombudsman

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