Essex County Council (17 017 796)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 04 Dec 2018

The Ombudsman's final decision:

Summary: Mrs X complains the Council failed to deal properly with safeguarding concerns relating to her mother, causing unnecessary stress to her family and leaving her mother at risk of harm. The Council failed to reconsider its finding of “partially substantiated” against the mother’s family, despite subsequently upholding some of their allegations against a Care Agency. The Council needs to review its finding of “partially substantiated”.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal properly with safeguarding concerns relating to her mother, causing unnecessary stress to her family and leaving her at risk of harm.

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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)
  3. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mrs X;
    • discussed the complaint with Mrs X;
    • considered the comments and documents the Council has provided in response to my enquiries;
    • consulted the Department of Health’s Care and Support Statutory Guidance and the Council’s SET Safeguarding Adults Guidelines; and
    • shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

  1. Mrs X’s mother, Mrs Y, has a progressive neurological disease. When diagnosed she contacted a solicitor in another country to set down her wishes on how she wanted to be treated when her illness progressed to the stage where she lost capacity to make decisions for herself. But this was not effective under English law. During the time of the events Mrs X complains about, there were proceedings in the Court of Protection, which eventually resulted in her being made her mother’s Deputy for health and welfare. Mrs Y receives NHS Continuing Healthcare which pays for her care at home.

The Care Agency’s allegations against Mrs Y’s family

  1. On 10 April 2017 the Council received allegations against Mrs Y’s family from the Care Agency looking after her, which it recorded as safeguarding concerns. The allegations related to:
    • “Choking, sleep deprivation, privacy and dignity deprivation, psychological and emotional abuse, force feeding, repeatedly told to ‘push’ to open her bowel every so often”.
  2. On 12 April, the Council decided to make safeguarding enquiries. Although it assigned this to a Social Worker, its records say an NHS officer would update on enquiries “in due course”.
  3. The Council’s record of a safeguarding discussion on 20 April says a safeguarding meeting was necessary. It says the NHS, as the funder of Mrs Y’s care, would put in 2:1 care to manage the risks before telling the family about the concerns. The Council advised the NHS to contact the Police if necessary. The record says the Council would tell the family about the allegations by letter.
  4. The Council’s 21 April safeguarding management plan says it would hold a strategy meeting by the end of the month. It says there was further risk of harm or illness to Mrs Y due to the actions taken by the family. It says the NHS would monitor the situation and contact the Police if Mrs Y needed removing from her home.
  5. The Council wrote to Mrs Y’s family about the safeguarding concerns on 24 April and invited them to a meeting the following day to discuss them.
  6. On 25 April the Council held a safeguarding meeting. Three Council officers attended the meeting with five members of Mrs Y’s family (including Mrs X), four NHS officers, and an adviser from a charity. The Council invited three officers from the Care Agency but they did not attend. They asked for a separate meeting at which they raised further safeguarding concerns. These were included in the list of concerns identified in the minutes of the 25 April meeting:
    • times and dosage of medications are being altered on the medication administration records;
    • risk to Mrs Y’s privacy and dignity, with a camera in the room and issue of consent;
    • risk of sleep deprivation due to length of PEG feed and waking Mrs Y up to empty her bowels;
    • not following speech and language therapy (SALT) guidelines on what can and cannot be eaten, posing a risk of choking (e.g. pineapple removed from Mrs Y’s mouth);
    • children in Mrs Y’s bedroom playing with the buttons on her bed and hoist;
    • repositioning Mrs Y too often;
    • risk of support breakdown.
  7. The meeting lasted four hours. The minutes show there was a detailed discussion of the allegations with the family providing evidence to refute them. The minutes identify these actions:
    • a meeting with the NHS, Care Agency and family to discuss the current care plan;
    • Dietician to discuss conflicting advice with Mrs Y’s hospice;
    • family to discuss getting advice from another Dietician with Mrs Y’s GP;
    • the NHS to re-visit the options for peg feeding and provide information in writing to the family;
    • charts to be kept to evidence: turning (by whom and when); food given by mouth (by whom and what);
    • the family to allow access for a mental capacity assessment regarding deprivation of liberty (care and treatment);
    • Council to commission an Independent Advocate to support the safeguarding process.

No timescales were identified for completing these actions, but the minutes say the next meeting would be on 16 May.

  1. After the meeting Mrs X and a sister contacted the Council to complain about the way it had treated them. They said they wanted to raise their own safeguarding concerns. The Council advised them to call its safeguarding line to do this. They reported safeguarding concerns on 7 May.
  2. The Council held another safeguarding meeting on 16 May at which the Safeguarding Co-ordinator presented her findings. Her report sets out the evidence gathered and addresses the seven allegations made (see paragraph 11 above). The report does not substantiate six of the concerns, including the general allegations of psychological and physical abuse. But the report partially substantiates the concern over “risk of support breakdown”. This took account of statements made by 13 of Mrs Y’s carers (5 long term and 8 short term). The statements showed many of them felt uncomfortable delivering care to Mrs Y, felt intimidated by her family and did not want to return. This resulted in an overall outcome of partially substantiated.
  3. The minutes of the meeting were made by the Chair. The Council says the minute taker did not turn up for the meeting, although the minutes do not reflect this. The minutes say the safeguarding concerns raised by Mrs Y’s family would be progressed separately. They record the Safeguarding Co-ordinator’s findings. The minutes identify these actions:
    • a meeting between the NHS, the Care Agency and the family to discuss the support plan for future care with a new care agency;
    • the family to contact Mrs Y’s GP about getting a second opinion from another dietician;
    • the NHS clinical lead to reconsider options for PEG feeding and share them in writing with the family;
    • the family to provide access for a capacity assessment, supported by an independent advocate;
    • an independent advocate to continue supporting Mrs Y in the safeguarding process.
  4. No further meeting was “scheduled or required”.
  5. Having given notice on 2 May, the Care Agency stopped visiting Mrs Y and the NHS made other arrangements for her care.
  6. Mrs X wrote to the Safeguarding Co-ordinator on 6 June questioning the partially upheld finding over the “risk of support breakdown”. She asked to see the statements written by the carers/nurses. The Safeguarding Co-ordinator told her she could not send the statements due to data protection.
  7. On 20 June the Council completed the safeguarding enquiries, accepting the Co‑ordinator’s findings.

The family’s allegations against the NHS Dietician

  1. Mrs Y’s family raised safeguarding concerns with the Council on 7 May. The Council’s records say the concerns related to psychological abuse, organisational abuse and neglect. They say Mrs Y continued to be at risk of harm and others may be at risk. But they do not say anything more than that and the Council did not produce a risk management plan. The records say the family had asked for another Dietician to resolve the dispute.
  2. The Council told the NHS about the safeguarding concerns.
  3. On 31 July the Council received a safeguarding report from the NHS into the concerns raised by Mrs Y’s family. This addresses the family’s concerns. It includes a detailed chronology of the communications between various medical professionals involved in Mrs Y’s care and her family over her feeding regime.
  4. On 16 August the Council e-mailed Mrs Y’s family the main points of the investigation and invited their comments. The investigation found the allegations unsubstantiated.
  5. The Council also produced a safeguarding management plan. This says:
    • the Dietician was taken off Mrs Y’s case until completion of the safeguarding enquiries; and
    • an independent Dietician reviewed Mrs Y to ensure her nutritional needs were met appropriately.
  6. On 24 August Mrs X told the Council the family would respond to the main points from the investigation. They did not do so.
  7. On 26 September the Council completed its safeguarding enquiry into the concerns about the Dietician. The record of the enquiry sets out the evidence considered. This includes the information provided by Mrs X and the safeguarding report. It explains why each of the concerns was not upheld. Two days later the Council formally decided to close the enquires on the basis that the allegations against the Dietician were not substantiated.

The family’s allegations against the Care Agency

  1. The family raised safeguarding concerns with the Council on 7 May. They related to specific incidents between February and May involving staff from the Care Agency. The Council’s records say the concerns related to psychological abuse, organisational abuse and neglect. The records say Mrs Y continued to be at risk of harm but do not describe the risks. They say the family “have always politely informed carers of mistakes in their practice, so that errors are not repeated”. However, the Council did not produce a risk management plan, as required by its procedures.
  2. The Council invited the Care Agency’s comments on the safeguarding concerns on 16 May. Two Managers at the Care Agency left in May so the concerns were forwarded to other Managers.
  3. The Council chased the Care Agency for its response twice in June.
  4. On 21 July the Council noted it had not received the Care Agency’s response, despite chasing this in June.
  5. On 15 August the Council received a copy of the Care Agency’s report on the family’s concerns. The Council asked for clarification on several points. It updated Mrs Y’s family.
  6. On 4 September the Council received an updated report from the Care Agency.
  7. On 22 September the Council noted the need to consider a report from the Care Agency on the family’s allegations.
  8. On 26 September the Council completed a management plan. It noted Mrs Y had been supported by two carers from the Care Agency until it stopped visiting her, lessening the risk of neglect or acts of omission.
  9. On 4 October the Court of Protection awarded deputyship to Mrs Y’s family.
  10. On 10 October the Council shared its findings on the allegations about the Care Agency with Mrs Y’s family but received no response.
  11. On 14 November the Council completed its enquiries into the family’s allegations about the Care Agency. Its record of the safeguarding enquiry addresses each of the family’s concerns. The Council found some of the allegations of neglect and acts of omission were substantiated, some were not substantiated, some were partially substantiated, others were inconclusive and some were not considered to be safeguarding issues as no impact on Mrs Y was alleged.

Is there evidence of fault by the Council which caused injustice?

  1. I cannot find fault with the Council over its decision to make enquiries into the safeguarding concerns raised by the Care Agency. They met the threshold for safeguarding enquiries as they raised the possibility of Mrs Y being at risk of harm. The fact that the Care Agency did not provide evidence to support its claims did not mean the Council did not have to investigate them. The purpose of safeguarding enquiries is to gather the evidence needed to make decisions on the concerns. There was no significant delay by the Council over its handling of the safeguarding concerns. When the Council gathered the evidence, it found six of the concerns were not substantiated. It partially substantiated the allegation of “risk of support breakdown”. Based on the evidence available to the Council at the time, that was a decision it was entitled to take. However, the Council should have reviewed that decision when it completed its investigation into the family’s allegations against the Care Agency and substantiated or partially substantiated some of their concerns. This meant the family had been right to question some of the carers’ actions. The failure to do so was fault by the Council. It needs to reconsider the partially substantiated finding over the “risk of support breakdown”.
  2. There was no fault by the Council affecting its decision on the family’s allegations against the Dietician. The Council commissioned enquiries from the NHS and made a decision taking account of all the information provided. Within that context, I cannot criticise the merits of the Council’s decision. However, the Council failed to produce a risk management plan at the start of its enquiry, as required by its procedures. That was fault, although I cannot say this caused injustice.
  3. There was also fault by the Council over its handling of the family’s allegations against the Care Agency. The Council did not produce a risk management plan until 26 September. There was also some delay in the Council’s handling of these concerns. Although it chased the Care Agency for its response twice in June, it did not do so in July. After receiving the Care Agency’s response in August, the Council took two months to pass information on to the family. However, I cannot say the Council’s faults caused injustice which warrants a remedy, as:
    • the Care Agency stopped visiting Mrs Y not long after the allegations were made; and
    • the family did not respond to the invitation to provide further comments.

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Agreed action

  1. I recommended the Council:
    • within four weeks reconsiders the finding of partially substantiated against the family over the “risk of support breakdown”;
    • within eight weeks considers what action it needs to take to make sure it produces risk management plans at the start of the safeguarding process.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman

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