Summary: Ms X complains a care home failed to meet her grandmother’s care needs and placed her at considerable risk. Ms X also complains the Council failed to carry out a proper safeguarding investigation, and did not follow proper process. And she is concerned about failings in the Deprivation of Liberty Safeguards process. The failings in the level of care provided to Mrs Y and in the DoLS process amount to fault causing an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complains a care home failed to meet Mrs Y, her grandmother’s care needs and placed her at considerable risk. The Council commissioned Mrs Y’s placement at the care home and failed to respond appropriately or adequately to address the concerns raised about her care.
2. Ms X also complains the Council failed to carry out a proper safeguarding investigation, and did not follow proper process. In addition, she is concerned about failings in the Deprivation of Liberty Safeguards process.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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.

Back to top

How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X;
• sent a statement setting out my draft decision to Ms X and the Council and invited their comments. I have considered Ms X and the Council’s comments.

Back to top

What I found

8. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment 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. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home, hospital or supported living accommodation to apply for authorisation.

Safeguarding

9. 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. (section 42, Care Act 2014)

Key facts

10. Mrs Y had a diagnosis of mixed type dementia and moved to the care home in 2012.
11. In July 2017 Ms X contacted the Council to raise concerns about Mrs Y’s care. Ms X was concerned Mrs Y’s care needs had increased significantly, but the care home had not raised this or made appropriate referrals to ensure they could continue to meet these needs. She was concerned that there were not enough staff at the care home to support the residents. Ms X asked for an urgent reassessment of Mrs Y’s care and support needs. She also questioned whether a nursing home specialising in dementia care may be a more suitable setting for Mrs Y.
12. A social worker (SW1) contacted Ms X to discuss her concerns. SW1 then visited Mrs Y at the care home with Mrs Y’s daughter Mrs Z, to reassess Mrs Y’s needs.
13. SW1 discussed Ms X’s concerns with the care home manager. The manager agreed to contact Mrs Y’s GP for a general check and to query whether a referral to an occupational therapist (OT) or physiotherapist would be of value to Mrs Y. SW1 also discussed the issue of DoLS with the manager as there was no authorisation in place for Mrs Y. The care home requested a DoLS assessment. The manager disputed there were only two members of staff on duty at the weekend and confirmed there were no staffing issues. SW1 also contacted the Council’s contracts team regarding Ms X’s concerns about staffing levels at the care home.
14. SW1 also completed a Continuing Healthcare (CHC) checklist to see whether Mrs Y may be eligible for free social care arranged by the NHS. The checklist identified Mrs Y was eligible for a full needs assessment and decision support tool (DST). The DST meeting took place on 14 September 2017 and made no recommendations.
15. A Best Interests Assessor completed a DoLS assessment and considered Mrs Y was receiving care in circumstances which deprived her of her liberty. The assessor was satisfied the arrangements were necessary, proportionate and in Mrs Y’s best interests. The DoLS authorisation was granted subject to conditions. These required the care home to provide a structured timetable of activities Mrs Y could participate in; to make referrals for further assessments by the OT and wheelchair teams; and to consider a referral to a dietician due to concerns about Mrs Y’s loss of weight.
16. An OT assessed whether Mrs Y needed any specialist seating aids, and confirmed that she did not. Ms X disagreed with this assessment.
17. The DoLS authorisation expired in December 2017. The Best Interests Assessor carried out a further assessment. The Assessor spoke to Ms X and noted she was concerned nothing had changed since the previous authorisation. Ms X was concerned Mrs Y still did not have a wheelchair; there was limited social stimulation in the care home and she did not have opportunities to access the community.
18. Ms X offered to support Mrs Y during the assessment and is unhappy the Assessor did not take up this offer. Ms X questions whether the Assessor met with Mrs Y. The records show the Assessor met with Mrs Y and the senior carer at the care home.
19. The Assessor was again satisfied the care home was using the least restrictive options and that the arrangements were necessary, proportionate and in Mrs Y’s best interests. The Assessor noted Mrs Y was spending more time in the lounge area with other residents, but there was no record of any activities offered. They also noted the OTs view that no intervention was required, and that Mrs Y’s weight had remained stable/ healthy. The Council granted a further DoLS authorisation for a period of 12 months. This authorisation was subject to a condition that the care home provide a structured timetable of activities Mrs Y could participate in.
20. Ms X questions why the conditions from the initial authorisation were not repeated on the second authorisation.
21. The Council’s case notes show the next contact with Ms X was on 23 April 2018. Ms X raised concerns that Mrs Y’s health needs had deteriorated but the care home had not sought additional support. As Mrs Y’s behaviour had become increasingly challenging the care home had proposed caring for her in bed. Ms X did not consider this appropriate, and reported that the relationship with the care home had broken down. She was also concerned the home had not followed up on a referral for a wheel chair made the previous year. Ms X felt there were safeguarding concerns regarding the care home and wanted Mrs Y to move to a nursing home.
22. A social worker (SW2) discussed Ms X’s concerns with her. She agreed to visit Mrs Y and to obtain further information from the care home. SW2 reviewed Mrs Y’s care needs and made a referral for a further assessment and support of Mrs Y’s mental health and challenging behaviour. SW2 advised Ms X she felt Mrs Y may now need 24-hour specialist nursing care and obtained Ms X’s consent to complete a further CHC checklist.
23. In addition, SW2 contacted the wheelchair provider to chase up the referral. The provider had no record of a referral for Mrs Y. SW2 made a referral to the community OT for a wheelchair assessment.
24. Ms X was concerned the care home had not alerted Mrs Y’s GP or the Council about Mrs Y’s changing needs sooner. The Council’s records state the care home manager advised SW2 that Mrs Y’s needs had fluctuated over the years and historically settled down after a short period. The manager had no concerns about Mrs Y’s physical health, but agreed to contact Mrs Y’s GP to make them aware of the changes in her behavioural needs.
25. SW2 discussed staffing levels with the manager and asked the home to maintain a separate behavioural chart with specific information. She also reminded the manager that the home should be keeping incident forms.
26. Using the Blackpool Safeguarding Adults Safeguarding thresholds matrix, SW2 identified Mrs Y was at high risk of organisational abuse and at some risk of neglect and acts of omission. She also noted other residents at the care home could be at risk. SW2 carried out further enquiries and a safeguarding meeting was arranged for 21 May 2018. Mrs Y moved to a specialist nursing home before this meeting took place.
27. Ms X attended the safeguarding meeting. The minutes note that there appear to be several communication issues between the care home and Mrs Y’s family, and with Mrs Y’s GP. Mrs Y’s care needs had changed and the care home had found it difficult to meet those needs, but had not informed the Council. The minutes also state changes to Mrs Y’s care plan and restrictions on her liberty should have been discussed with her family and care professionals.
28. The safeguarding meeting identified training needs for the care home. The contracts officer would also visit the care home and use their findings in future contract reviews.
29. Following this meeting SW2 clarified information given by the care home about Mrs Y’s B12 injections. They also made further enquiries about the care home’s wheelchair referrals. These enquiries highlighted significant inconsistencies in the care home manager’s accounts at the safeguarding meeting, and suggest the care home had not made a wheelchair referral.
30. As the care home was in the process of being sold, the Council also contacted the new owners in relation to the safeguarding investigation and findings.
31. Ms X was concerned about the actions of the care home manager and their dishonesty in the safeguarding investigation. Although Mrs Y had moved to another care home, Ms X was concerned about other residents and felt there were outstanding issues that needed to be resolved.
32. The Council confirmed its contracts team had visited the care home to review the contract. It also confirmed the care home manager was accountable to the care home owners.
33. Ms X is unhappy with the way the Council had dealt with her safeguarding concerns, and has asked the Ombudsman to investigate the matter. Ms X feels Mrs Y should have moved to another home following the review of her needs in July 2017. At this stage Mrs Y had lost three stone in weight, could not feed herself and could not mobilise independently. Ms X does not consider the Council acted swiftly enough and prolonged Mrs Y’s distress and suffering. Ms X also asserts that had the Council acted sooner Mrs Y may not have needed an EMI nursing home.
34. In response to my enquiries the Council states the care home manager in post during the safeguarding investigation no longer works at the care home. As part of its discussions with the new owners, an action plan was implemented to address areas of concern. The plan sets out the action required in areas, including DoLS, challenging behaviour, changing needs, staffing levels, and equipment.
35. The plan shows staff have received training in several areas, and appropriate authorisations, plans and records are in place and kept under review.
36. Ms X has responded to the draft decision and reiterated her concerns that neither the care home nor the Council identified Mrs Y increasing needs or took appropriate or timely action to address this. Ms X also maintains the Council’s actions/ inaction have breached the Care Act, the Mental Capacity Act and the Deprivation of Liberty Safeguards.
37. Ms X asserts the care home was not an appropriate placement for Mrs Y from the outset. It was not registered to support adults with dementia and its staff were not trained in dementia care. I have not investigated the suitability of the placement in 2012 or the circumstances which led to Mrs Y moving to the care home. We expect people to make a complaint to us within one year of them thinking the Council has done something wrong. These issues occurred significantly more than 12 months ago, and I do not consider it would be appropriate the exercise discretion to investigate them now.

Analysis

38. The Council commissioned Mrs Y’s placement at the care home. The actions of the care home are therefore deemed to be actions taken on behalf of the Council in meeting its duty to provide social care to meet assessed eligible care needs.
39. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decisions were made.
40. The Council reassessed Mrs Y’s care needs in July 2017 in response to Ms X’s concerns that Mrs Y’s needs had increased significantly. This is an appropriate response. The assessment did not identify a need for a change in setting or a change in Mrs Y’s care. SW1 noted Mrs Y appeared content in her surroundings and that the care manager felt the care home could meet all of Mrs Y’s needs.
41. There was no DoLS authorisation in place for Mrs Y until the summer of 2017. This is fault. It is accepted that the restrictions in place to maintain Mrs Y’s safety amounted to a deprivation of liberty. As such, a DoLS authorisation should have been in place sooner.
42. The DoLS authorisation was conditional on the care home providing a varied timetable of structured activities Mrs Y could participate in and making referrals for further assessments by the OT and wheelchair teams. The records show there was a referral to the OT and Ms X understood a wheelchair referral had been made. But there is no record of the activities offered to Mrs Y. The Council has since identified that the care home did not make a referral to wheelchair services. The care home does not therefore appear to have complied with the DoLS conditions. This failure would amount to fault.
43. The Council has investigated and upheld Ms X’s safeguarding concerns, finding there was neglect and acts of omission by the care home. These acts of neglect and omission amount to fault.
44. Mrs Y had left the care home by the time the investigation concluded so it was not necessary to make any recommendations to protect her from an ongoing risk. However the Council has put in place an action plan to improve practices at the care home and reduce risks to other residents. There were significant concerns about the actions and veracity of information provided by the care home manger during the safeguarding investigation. This manager is no longer employed by the care home.
45. To try and reduce the risk to Mrs Y while the Council investigated the safeguarding concerns SW2 made referrals for reassessments and support, completed the CHC checklist, made a referral for a wheelchair assessment and raised concerns with the contracts team. Arrangements were also made for Mrs Y to move to another home.
46. Having identified fault I must consider whether this has caused a significant injustice. The main injustice of the care home’s neglect and acts of omission would be to Mrs Y. Unfortunately, as Mrs Y died last year, I am unable to recommend a remedy for any injustice caused to her. Ms X believes there should be a compensatory payment to acknowledge Mrs Y’s suffering. But we will not normally seek a substantive remedy in the same way as we might for someone who is still living. Nor do we recommend paying a token payment to a nominated charity or to help fund a memorial to the deceased person, to remedy injustice to that person.
47. I consider the fault identified above had also caused Ms X an injustice. Ms X has experienced distress and anxiety in relation to the failings in Mrs Y’s care and has been put to unnecessary time and trouble to trying to resolve the matter.

Agreed action

48. The Council has agreed to
• apologise and pay Ms X £150 in recognition of the distress and anxiety caused by the fault identified and the time and trouble she was put to. The Council should take this action within one month of the final decision.
• review its processes and procedures, and contract arrangements with care homes to ensure that appropriate DoLS authorisations are identified and in place for residents where required. The Council should complete this review and provide the Ombudsman with evidence of the action it has taken within three months of the final decision.

Back to top

Final decision

49. The failings in the level of care provided to Mrs Y and in the DoLS process amount to fault causing an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman