The Ombudsman's final decision:
Summary: Mrs X did not appeal against the outcome of the safeguarding case conference within the extended time limit. The Council explained the process for the case conference when it wrote to Mrs X. There is no reason for the Ombudsman to investigate the complaint further.
- Solicitors complain on behalf of Mrs X (as I shall call her) that the Council convened a safeguarding case conference about her treatment of her husband (since deceased) and found that abuse had occurred, and that it did not consider her appeal against the outcome.
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. 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)
- 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)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
How I considered this complaint
- I considered the written information provided by the Council and by the solicitors. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
- Not all the evidence I have seen is included in this statement but I am satisfied that its omission does not affect the outcome.
What I found
- 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)
- The Care and Support Statutory Guidance says (14.40) “The circumstances surrounding any actual or suspected case of abuse or neglect will inform the response. For example, it is important to recognise that abuse or neglect may be unintentional and may arise because a carer is struggling to care for another person. This makes the need to take action no less important, but in such circumstances, an appropriate response could be a support package for the carer and monitoring. However, the primary focus must still be how to safeguard the adult”.
- The Council’s safeguarding procedure details the availability of an appeal against the decision of a case conference.
- The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
What happened - background
- Mrs X had a lasting power of attorney for Mr X’s health and welfare. Mr X had been in ill-health for some years, and Mrs X and some carers whom she employed privately had cared for him at home. In April 2017, his health deteriorated and he was admitted to hospital with pneumonia.
- When Mr X was discharged home from hospital, Mrs X refused the recommendation of a profiling bed or a hoist to move Mr X, although a Moving and Handling Assessment had recommended the use of a hoist. She said she would be unable to share a profiling bed, and she believed the use of a hoist was the reason why Mr X was bruised when he was discharged home.
- Following an application by the Council to the Court of Protection, the Court accepted the medical report put forward by Mrs X. The report said Mr X’s condition had improved since his discharge from hospital, and the bruises he suffered were a side-effect of the drugs he had been prescribed. The Court agreed it was not now (in September 2017) in Mr X’s best interests to use a hoist. The Court noted Mrs X’s agreement to engage with all professionals involved in the care of Mr X.
What happened – the safeguarding case conference
- In April and May 2017, the homecare agency commissioned (through NHS Continuing Healthcare funding) to provide some care for Mr X reported their concerns that the private carers were moving Mr X using informal techniques which they felt were unsafe and could cause harm. The Council’s records show that Mr X had bruises to his elbows, arm and lower right leg. There were also concerns that Mrs X would not allow social workers to undertake a capacity assessment of Mr X, and was reluctant to accept the involvement of an independent advocate for him.
- Following safeguarding enquiries, the Council wrote to Mrs X and the three private carers who were identified as a potential source of risk to Mr X and invited them to a safeguarding case conference in September. Its letter explained the case conference would decide whether abuse had occurred, and said Mrs X and the three carers were considered to be a possible source of risk to Mr X and they would have a right to respond to the allegations. The letter contained a link to the Council’s safeguarding policy and procedures.
- The Council says the case conference was the final stage of the safeguarding process and its intention was to conclude its investigation of the concerns raised and to form a protection plan for Mr X. (It says at that time the case conference was always the final stage of its safeguarding procedure, but since then it has recognized the need for greater flexibility and is revising its processes.)
- Mrs X and two of the private carers attended the case conference (Mrs X was accompanied by her solicitor as her friend). On the basis of repeated reports of concern about Mrs X ‘s and the private carers’ handling of Mr X, and a refusal to accept professional advice, the case conference found that abuse had occurred. A protection plan was drawn up which focused on the need for the working relationship between all parties to improve for Mr X’s sake.
- The Council’s records show that the way in which the safeguarding case conference was conducted was in accordance with its procedure.
- Mr X died in November.
- In December the Council wrote to Mrs X’s solicitor with a copy of the case conference minutes and asked for comments within five days. The solicitor replied that Mr X had recently died, and said five days was insufficient time for her to consult with Mrs X. She also asked for details of how to appeal against the finding, that abuse had occurred.
- The Council responded on 14 December. It said although the deadline for appeal had already passed, if Mrs X submitted her appeal by 3 January it would consider it. It said the appeal would need to say why the outcome of the case conference was “unjust or unsound”.
- Mrs X’s solicitor wrote to the Council on 30 January asking for the outcome of the case conference to be overturned. She said she would lodge a formal complaint about the conduct of the case conference. She said the private carers had been “ambushed” at the case conference and asked to recall incidents from many months previously.
- On 10 April Mrs X also wrote to the Council. She said she had been intimidated and bullied by the way in which the Council had pursued the allegations.
- The Independent Reviewing Officer for adult safeguarding wrote to Mrs X on 23 April. She said the time limit for making an appeal against the outcome of the case conference had long passed, and referred to her letter of 14 December to Mrs X’s solicitor. She said she recognized the case conference process could be stressful and apologised if Mrs X had felt intimidated but added that as chair of the conference she would not have allowed any participant to bully another.
- On 24 April an Assistant Director in the Legal department wrote to Mrs X’s solicitor with a reply to her complaint. She explained the appeals process which was contained in the safeguarding policy. She said the emphasis of the case conference as far as Mrs X was concerned was on the development of a protection plan so that all parties could work together for Mr X’s wellbeing. She confirmed that the Council had followed its safeguarding procedures in respect of the case conference and the appeals process.
- Mrs X’s solicitor complained to the Ombudsman. She said she and Mrs X had understood that in the light of the medical report issued by the independent doctor for the Court proceedings, the case conference would be “relatively straightforward”; she said however that the meeting lasted over three hours, found against Mrs X and the carers because they did not agree with the advice given by the Council’s professionals in the Moving and Handling assessment in May, did not allow her to question the evidence, and belatedly (during the meeting itself) advised the carers that the outcome could have implications for their future employment.
- The Council points out that a failure to follow the processes in respect of concluding the safeguarding enquiries might have resulted in a situation where no protection plan was in place for Mr X. It says the safeguarding investigation was prompted not only by the report of bruises to Mr X (and it acknowledges the expert medical opinion which was received) but also by the refusal of Mrs X and the private carers to heed advice about moving and handling techniques, and the refusal by Mrs X on Mr X’s behalf of recommended equipment.
- Mrs X’s solicitor represents Mrs X, not the three private carers who were also invited to the case conference. The Ombudsman has not received a complaint or consent to making a complaint from any of the private carers and so has no basis to consider a complaint on their behalf.
- The Council wrote to Mrs X’s solicitor extending the deadline for an appeal. That deadline was missed by a considerable amount of time. It is not fault on the part of the Council not to consider the appeal which was eventually submitted.
- The case conference process and potential outcomes were clearly signposted in the letter of invitation; the safeguarding procedures were available to Mrs X and her solicitor then. There is no evidence the Council failed to explain the processes to Mrs X and her solicitor.
- On the basis of the information available to it the Council was entitled to reach a decision at the case conference. There is no evidence that it failed to follow its procedures and so no reason for the Ombudsman to question the merits of its decision.
- There is no evidence of fault on the part of the Council.
Investigator's decision on behalf of the Ombudsman