The Ombudsman's final decision:
Summary: Mr and Mrs X complained that a Care Provider gave their adult son sleeping pills every other night for seven months without his or their consent. They said this caused them significant unnecessary distress, and they are concerned about the impact of wrongly administered medication on their son. We find the Care Provider at fault. The Council, as the commissioner of the son’s care, has agreed to make a payment to Mr and Mrs X to reflect the unnecessary distress and for exposing their son to avoidable risk of harm.
- The complainants, who I refer to here as Mr and Mrs X, complained on behalf of Mrs X’s son, Mr B. Mr and Mrs X complained that the residential Care Provider (Poppy Cottage Ltd) gave Mr B sleeping pills every other night, without his or their consent, for seven months.
- Mr and Mrs X said this caused them significant unnecessary distress. They are concerned about the impact on Mr B of wrongly administered medication.
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 an organisation’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)
- We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
- We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
- 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)
- 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 the CQC.
How I considered this complaint
- Mr B has a learning disability. As a result, he suffers from an impairment of the mind/brain which affects his ability to make certain decisions for himself. Mr and Mrs X are Mr B’s next of kin and have represented this complaint to the Care Provider on Mr B’s behalf. For these reasons, I find Mr and Mrs X are suitable people to represent the complaint on Mr B’s behalf.
- As I have said in paragraph six, we normally expect someone to complain to the Care Quality Commission (CQC) about possible breaches of standards. In this case, the CQC was already involved in monitoring this Care Provider. However, the CQC cannot remedy individual injustice in the same way the Ombudsman can. Also, the CQC cannot investigate the way in which care providers respond to complaints. Taking all factors into account, I decided there are good reasons to investigate this complaint.
- I considered the information and documents provided by Mr and Mrs X, the Council, and the Care Provider. I spoke to Mr and Mrs X about their complaint. Mr and Mrs X, the Council, and the Care Provider had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
- I considered the relevant legislation and statutory guidance, set out below. I considered the Care Quality Commission’s inspection report on the Care Provider, published on 29 March 2022. I also considered the Ombudsman’s published guidance on remedies.
What I found
What should have happened
- 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.
- Regulation 12 says that medications must be accurately administered according to prescribed instructions and at suitable times to make sure the person is not placed at risk. It says staff must follow policies and procedures about managing and administering medication.
- Regulation 20 is about care providers’ duty of candour. This says registered persons must act in an open and transparent way, regarding the provision of care and treatment, to service users or the relevant person (usually the service users’ representative). If there is a notifiable safety incident (any unintended or unexpected incident that happens during provision of care or treatment), the registered person must notify the service user or relevant person and include an apology. This notification must be followed by a written notification to the service user or relevant person, and this must also contain an apology.
- CQC guidance says a crucial part of the duty of candour is the apology. It says in many cases the lack of a timely apology pushes people to take legal action. The guidance says that to fulfil the duty of candour, care providers must apologise for the harm caused, regardless of fault, and be open and transparent about what happened.
- The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, and respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
- Article 8 of the Human Rights Act is about the right to private and family life. The right to private and family life is relevant in cases where there has been poor quality of care, albeit not amounting to inhuman or degrading treatment, or in cases involving decisions around consent to medical treatment or personal care.
- Article 14 of the Human Rights Act is about discrimination. Discrimination occurs when an individual is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. Discrimination can also occur if an individual is disadvantaged by being treated the same as another person when their circumstances are different (for example if they are disabled or pregnant).
- The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
- In practical terms, councils and care providers will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected, and that there is a process for decisions to be challenged by way of review or appeal.
The Equality Act
- The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
- Organisations carrying out public functions cannot discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics' referred to in the Act include disability.
- We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
- Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected, and these decisions can be challenged, reviewed, or appealed.
- Mr B has a learning disability and lives in a residential care setting. His care is provided by Poppy Cottage Ltd (referred to here as the Care Provider). The Council commissioned and funds the placement.
- In November 2020, the Care Provider’s staff told Mr B’s GP he was not sleeping well. The GP prescribed medication (sleeping tablets) to be used ‘when needed’. Staff then gave Mr B this medication every other night.
- In July 2021, Mrs X contacted the Care Provider with concerns about excessive use of this medication. The Care Provider stopped giving Mr B this medication and investigated Mrs X’s concerns.
- The Council did a safeguarding investigation and found neglect and acts of omission.
- In November, Mr and Mrs X complained to the Care Provider.
- The Care Provider told Mr and Mrs X that the Head of Care and the Senior Support Worker had directed staff to give Mr B the medication every other night. The Care Provider said staff gave Mr B the medication without understanding why, so Mr B was likely to have been given the medication without needing it.
- The Care Provider said no staff members had informed Mr and Mrs X, as Mr B’s next of kin, or discussed this change of medication with them or other family members.
- The Care Provider said the Head of Care and the Senior Support Worker were in charge of medication but no longer worked there. It said the frequent use of the medication was without the direct approval of the Registered Manager or any other manager. The Care Provider said internal audits of medication should have questioned whether this medication was needed or not.
- The Care Provider said what action it recommended to make sure this did not happen in future. This included staff training, putting proper protocols in place, audits, and discussing any changes in medication with Mrs X.
- Mr and Mrs X replied to this complaint response saying, amongst other things, that the Care Provider had not apologised.
- In December, Mr and Mrs X brought their complaint to the Ombudsman.
- In May 2022, the Care Provider wrote to Mr and Mrs X. It apologised for the mismanagement of Mr B’s medication between November 2020 and July 2021. It apologised for the harm and distress caused to Mr B and to Mr and Mrs X.
- The Care Provider said it had learnt lessons, particularly around closer monitoring and auditing of medication.
- Between June and September 2021, the Council received at least five safeguarding concerns about the Care Provider. The Council’s safeguarding enquiries substantiated neglect and acts of omission which included missing medication, and poor records around medication and administration of medication.
- The Council carried out an unannounced visit to the Care Provider. The Care Quality Commission (CQC) also did an unannounced visit the following week, after receiving an increased number of alerts about the Care Provider.
- The Council met with the CQC to discuss their findings and what action needed to be taken as a result.
- The outcome was that the Council suspended all new placements with the Care Provider, and put an improvement plan in place. This plan highlighted the issues with service quality. The Council managed this plan, and measured and tracked all rectifications and improvements.
- The Care Provider had to demonstrate to the Council that actions had been completed. The Council completed a number of site visits as well as reviewing evidence from the Care Provider. The Council is satisfied all the required actions have been completed. [I note that the Council continues to work alongside the Care Provider on further improvements.]
- The Council also reviewed each person placed with the Care Provider. This was to make sure the Care Provider was able to meet the needs of that person, that their care and support was person-centred, and that each person remained safe.
- The Council contacted every other council who had service users using the Care Provider. The Council shared its findings and plans for improvement with the other councils. It recommended the other councils carried out their own reviews of care packages.
Care Quality Commission inspections
- I have seen the CQC’s inspection report on Poppy Cottage, published 29 March 2022. This inspection referred to a previous inspection (September 2021), which found Poppy Cottage was in breach of Regulation 12 (see above) because it failed to ensure medication was managed and administered to people safely. That inspection also found medication protocols for medication 'when needed’ were not always in place and did not ensure effective, consistent administration of medication.
- The CQC’s March 2022 inspection found the Care Provider was still in breach of the Regulations. This inspection found that care and treatment “was not always provided in a safe way”.
- The CQC is still involved and is monitoring the Care Provider’s improvement. The Care Provider will have to satisfy the CQC’s compliance requirements to maintain its registration.
- Mr and Mrs X complain that the Care Provider gave Mr B sleeping pills every other night, without his or their consent, for seven months.
- As I have said above, Regulation 12 says medications must be accurately administered according to prescribed instructions to make sure the person is not placed at risk.
- The Care Provider accepts that it gave Mr B this medication every other night, for seven months, without assessing if he actually needed it. This is in breach of Regulation 12 and is therefore fault.
- The Care Provider’s Head of Care and Senior Support Worker directed staff to give Mr B this medication without assessing whether he needed it. This is fault.
- The Care Provider accepts medication audits were not detailed enough and did not raise concerns about the regularity of medication being given ‘when needed’. This is fault.
- The Care Provider says it does not know why it failed to contact Mr and Mrs X to discuss the change in Mr B’s medication at any point. It accepts it should have contacted them to discuss this. This is fault.
- These faults caused Mr B and Mr and Mrs X injustice.
- The injustice to Mr B was that he was given sleeping medication every other night for seven months that he likely did not need. This exposed Mr B to avoidable risk of harm. Taking strong medication of this type repeatedly, consistently, and over a prolonged time, against the doctor’s prescribing advice, put Mr B at increased risk of side effects from the medication. These side effects could have been short-term or long-term and could have affected him both physically and mentally.
- The injustice to Mr and Mrs X is the unnecessary distress caused by these faults.
Human Rights and the Equality Act
- I find the Care Provider failed to have due regard to Articles 8 and 14 of the Human Rights Act in its treatment of Mr B. This is because I find the Care Provider treated Mr B less favourably than someone who can articulate themselves or who can manage their own sleep pattern (Article 14). I find this failure around Article 14 also impacted Mr B’s rights under Article 8.
- I find the Care Provider failed to consider the impact of its actions (the way it administered the medication) on Mr B. For this reason, I find the Care Provider failed to have due regard to its duties under the Equality Act.
- The Care Provider apologised to Mr and Mrs X in writing in May 2022, nearly a year after this issue came to light, and six months after they complained.
- The Care Provider says it apologised verbally to Mr and Mrs X during a video meeting in August 2021. Mr and Mrs X say there was a brief apology during this meeting. However, they say it did not come from the registered manager and they did not feel it was sincere, given the circumstances.
- The Care Provider says it apologised in “other complaints, for example replying to a complaint” in November 2021. I have seen this complaint response, and the follow-up complaint response, and there is no apology. The first evidence of a written apology is May 2022.
- As I have said above, Regulation 20 says the registered person (in this case, the Care Provider) must notify the relevant person (Mr and Mrs X) of the notifiable safety incident and must apologise in writing. I find the Care Provider failed to provide a written apology in a timely manner, in line with Regulation 20 and the guidance. This is fault.
- Before receiving the May 2022 letter, Mr and Mrs X told me they felt the Care Provider had not apologised and had not accepted full responsibility for what had happened. This left them feeling like the trust had been broken.
- If the Care Provider had apologised formally, in writing, at the time, I find Mr and Mrs X would not have been caused so much distress. Also, I find the trust may not have been so damaged.
- The Council told me its views of the Care Provider’s complaint responses. It said the responses lacked empathy at times. It said, “A more conciliatory tone may have led to a better relationship and greater trust between the provider and complainant, which in turn may have led to a resolution at an earlier stage.” I agree.
- The Council said the Care Provider should have provided a more comprehensive level of detail about its investigation, actions it was taking to improve, and how the actions would reduce similar issues happening again.
- The Council recognised that it has a role in handling such complaints. The Council said its complaints process should have identified that the Care Provider’s responses did not reflect the Council’s own standards. It said it should have made efforts to make sure the Care Provider’s responses fully addressed Mr and Mrs X’s concerns and showed empathy “in what must have been a very distressing time”.
- I find the Care Provider at fault for the way it responded to Mr and Mrs X’s complaint. I find this exacerbated their distress (which is the injustice).
- The Council says, as a result of this, it is reviewing its processes to make sure it takes an active role to mediate and manage a care provider’s complaint response, if it becomes apparent a complaints process is not adequately resolving an issue. The Council says it will work with the Care Provider to improve its complaints handling process and the way it responds to complaints.
- I am satisfied the Council is taking appropriate action to make sure the Care Provider improves its complaint responses in future.
- 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 Care Provider, I have made recommendations to the Council.
- I have considered the improvement plan put in place by the Council and the Care Quality Commission (CQC). I have considered the evidence which shows the improvements have been completed to the Council’s satisfaction. I am satisfied these improvements have been completed. I am also reassured that the Council and the CQC are still involved in monitoring improvements. For this reason, I have not proposed any further service improvements regarding the Care Provider.
- However, I find that the injustice caused to Mr B and to Mr and Mrs X have not been fully remedied. In light of this, the Council has agreed to the following:
- Within four weeks of this decision, the Council will make a payment to Mr and Mrs X, on behalf of Mr B, of £1500. This is to acknowledge the injustice caused by exposing Mr B to avoidable risk of harm. In arriving at this figure, I have considered the length of time involved, the severity of the risk of harm, and that Mr B is a vulnerable adult. Given these factors, I consider an amount at the maximum end of the Ombudsman’s range is appropriate.
- Within four weeks of this decision, the Council will make a payment to Mr and Mrs X of £1000. This is to acknowledge the injustice caused (the unnecessary distress). I have considered the level of distress caused. I have also considered that the Care Provider added to the distress through its complaint handling, which meant the distress was unnecessarily prolonged. Given these factors, I consider an amount at the maximum end of the Ombudsman’s range is appropriate.
- These recommendations are in line with the Ombudsman’s published guidance on remedies.
- The Ombudsman will need to see evidence that these actions have been completed.
- I have completed my investigation. I uphold Mr and Mrs X’s complaint because the Care Provider was at fault. This fault caused Mr B and Mr and Mrs X injustice. The Council has agreed to take action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman