The Ombudsman's final decision:
Summary: The Ombudsmen found faults in safeguarding Mrs D’s mother Mrs F, assessing Mrs F and her husband, and in responding to Mrs D’s complaint. The Council and Trust have already accepted there were faults and apologised. This is an appropriate way to address the injustice to Mrs D’s family. The Council and Trust have also improved services since Mrs D’s complaint. Some of their process and information remain flawed, so we have recommended service improvements. The Council and Trust accept our recommendations, so the Ombudsmen have completed their investigation.
- The complainant, whom I shall call Mrs D, complains about the Council’s and Trust’s actions in response to concerns about her father, Mr F’s ability to safely care for her mother, Mrs F.
- In particular, Mrs D complains the Council and Trust failed to:
- act on repeated concerns between November 2015 and January 2017 about Mr F’s inability to care for Mrs F at home and the resultant risks to both her parents. This includes a failure to carry out a safeguarding enquiry and take action to protect Mrs F from potential abuse and neglect;
- hold a Best Interest Meeting for Mrs F; and
- assess Mrs F’s social care needs and Mr F’s needs as a carer and failed to provide enough support for those needs.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- Mrs D’s complaint is late because she was aware of the matters she complains about from November 2015 and throughout 2016 but she did not complain to the Ombudsmen until July 2018, more than 12 months later. We have exercised our discretion to investigate the complaint from November 2015 to January 2017 when the concerns stopped, because we considered that:
- Mrs D has provided good reasons for why she did not complain to us sooner;
- there was a public interest in investigating the action taken by the Council and Trust in response to Mrs D’s complaint, to consider whether this was likely to prevent similar problems recurring; and
- it was likely that we would be able to get the evidence needed for a fair investigation.
What I found
- Mrs F lived with her husband Mr F. Mr F has a long-standing brain injury following an accident. Their daughter, Mrs D, says this affected his emotional responses as well as his ability to make rational decisions.
- Around 2010, Mrs F was diagnosed with Alzheimer’s disease, a type of dementia. Mr F became her carer. Mrs F received a small amount of privately funded care in her own home. This included some weekly personal care and cleaning every other week. She also attended a day centre twice a week. However, Mr F had day-to-day responsibility for her personal care, medication, keeping her company and making sure she was safe. Mrs F’s behaviour could at times be challenging. Mr F found it particularly difficult to cope with her mistaken beliefs and hallucinations relating to him.
- Mrs F received mental health care from the Community Mental Health Team (CMHT). The CMHT provides mental health care support from professionals in the community. This usually includes social workers, community psychiatric nurses, psychologists and psychiatrists. In Mrs F’s case, the CMHT also provided her with social care services under an agreement with the Council.
- From 2015, Mrs F’s daughters and others involved in her care started raising concerns about Mr F’s ability to care for Mrs F. They were concerned that, because of the effects of his brain injury and the general strain of caring for Mrs F, Mr F was no longer able to cope. They worried he was unintentionally neglecting and abusing Mrs F as a result.
- Between November 2015, and Mrs F going into residential care in January 2017, the Council received 11 concerns or safeguarding referrals about risks to Mrs F. The Council decided not to investigate these. The Council asked the social services and mental health teams involved with Mrs F to offer further assessments or support to Mr and Mrs F. Mr F declined, so these did not go ahead.
- In January 2017, Mrs F entered a residential care home for respite, but this became a permanent placement. When Mrs F moved to the care home, its manager made a safeguarding referral to the Council about neglect, physical abuse, emotional abuse and financial abuse.
- Mrs F stayed in the care home where she was settled and well cared for, and no longer at risk of abuse. She died peacefully in her sleep in the care home in April 2017.
- Mrs D says that what happened leading up to Mrs F’s move to the care home ruined her relationship with her father. Mrs D is concerned that her mother may have suffered neglect and physical abuse for some time before moving into residential care.
- Mrs D complained to the Council and Trust about what happened. She was not satisfied that their response addresses her concerns. She also considered the organisations did not provide enough evidence of service improvements that would prevent similar problems happening to others.
A – Responses to concerns and safeguarding referrals raised November 2015 to January 2017
Relevant law and guidance
- A council must make (or ensure another suitable organisation makes) 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. (Care Act 2014, section 42)
- The Government’s “Care and support statutory guidance” provides guidance to councils and other organisations on how to meet their duties under the Care Act. It says:
- the Council remains responsible for referring the enquiry to the right place and ensuring it is acted upon; and
- it is important for safeguarding partners to feel able to challenge each other, where they believe their actions or inactions are increasing the risk of abuse or neglect.
- Between November 2015 and Mrs F going into residential care in January 2017, the Council received 11 concerns or safeguarding referrals about risks to Mrs F. These came from Mrs F’s daughters, her home care agency, the day care centre, Mrs F’s GP, a nurse in another NHS Trust, as well as the Council’s own social care staff. I have listed summaries of some of the concerns below.
- Mrs D contacted the Council for help because she had concerns that Mr F was not coping and was threatening to kill himself. She was also worried that Mrs F was at risk of neglect, physical and emotional abuse from Mr F.
- A nurse (from a different Trust) contacted the Council with concerns about:
Mr F and the care arrangements being on a “knife’s edge”; Mrs F being heavily soiled with old soiling and her bedroom smelling of urine; Mr F trying but not knowing how to care for Mrs F; the impact of Mr F’s brain injury.
- A Council social care worker asked the Council’s Community Response and Reablement (CRR) team to carry out an urgent home visit. This was because a telephone call with Mr F gave them concerns about how Mr F was caring for Mrs F. The officer was also concerned about Mr F’s mental health because
Mr F was screaming during the call.
- Mrs F’s day centre contacted the Council about Mrs F’s care. This was because: her clothing was stained in faeces and soaked in urine; she had come in the next day in the same clothes; she was worried carers and Mr F would be cross with her around personal care issues; she had an unexplained bruise and cut on her face.
- Neglect, because of difficulties ensuring Mrs F wore incontinence products properly and keeping her and her environment clean following double incontinence. This included re-dressing in soiled clothes, not bathing, leaving urine and faeces on doors and handles.
- Risk of physical harm through: rough handling by an exasperated and distressed Mr F, poor hydration, medication which Mrs F did not have capacity to use being left out for her to take herself, being left alone in the house two nights a week while Mr F went to play bridge or in the car when they went shopping, being left to run her own baths where there was a risk of scalding.
- Risk of psychological abuse through witnessing Mr F’s frequent distress and through being left alone at home or in the car.
- neglect, because of her poor personal hygiene including a pad that appeared to have been there for days;
- physical abuse, because of unexplained wounds which had a bad smell indicating infection;
- emotional abuse, because Mr F had reported Mrs F ate very little, but she had a good appetite in the care home unless Mr F was nearby, when she would stop eating and appear guarded; and
- financial abuse, because of Mr F had allegedly pressured her to sign bank forms despite her not wanting to do so and not having the capacity to understand them.
- The Council has already accepted that it should have carried out or commissioned the Trust to carry out a safeguarding enquiry.
- Failure to do so over a long period when family and professionals were raising concerns is fault. Given the serious concerns raised by different people who met Mrs F at different times, I consider it more likely than not that a proper and timely enquiry would have:
- concluded Mrs F was at risk of or experiencing abuse or neglect; and
- resulted in a plan to remove or reduce the risks.
B – Best interests meeting; assessment of and support for Mrs and Mr F’s needs
Relevant law and guidance – mental capacity and best interests
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
- The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity, but further investigation may be required.
- A person’s capacity must be assessed in terms of whether they have the capacity to make a particular decision at a particular time. The assessment is a two-stage test:
- Does the person have a temporary or permanent impairment of the mind or brain, or a disturbance affecting how their mind or brain works?
- If so, does that impairment or disturbance mean the person cannot make the decision when it needs to be made?
Relevant law and guidance – social care needs assessment
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support or a carer. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- An adult with possible care and support needs or a carer may choose to refuse to have an assessment. In these circumstances local authorities do not have to carry out an assessment. Where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority must do so.
- Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out the carer’s needs for support, and the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult. The carer may refuse an assessment.
- Where the local authority is carrying out a carer’s assessment, it must consider the carer’s potential future needs for support. This must include a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
- Mrs F had a diagnosis of Alzheimer’s Dementia. The mini mental state examination (MMSE) is one of the tests commonly used by medical professionals to help diagnose dementia and track its progress. An MMSE score is one of the ways clinicians assess the progress and severity of dementia. During the MMSE, the patient answers several questions and scores points for correct answers. The maximum score is 30. A score of 13-20 suggests moderate dementia. In July 2015, Mrs F’s MMSE score was 17.
- In February 2016, Mrs D contacted the Council to raise concerns about Mrs F and to ask for care from social services. The Council spoke to Mrs F’s CPN at the Trust. The CPN considered she did not have the mental capacity to make decisions about her care but had not assessed this formally. The CPN also told the Council he recommended a residential care placement for Mrs F, but that her husband would not allow this to go ahead.
- Having decided not to start a safeguarding enquiry, the Council asked the Trust to formally assess Mrs F’s capacity to make decisions about her care needs and carry out “a formal best interests meeting with all parties”. The Council advised the Trust that if there was a continued dispute, it may need to go to the Court of Protection for resolution.
- Mrs F’s CPN visited her soon after the Council’s request but did not see her alone. The CPN’s note of the visit says Mrs F denied any concerns and said she was happy and wanted to stay at home. The CPN did not assess Mrs F’s capacity to decide on her care arrangements and decided there was no reason to arrange a best interests meeting.
- There is no record of a mental capacity assessment or best interests meeting until Mrs F went into residential care about a year later. There is also no record of assessments of Mrs F’s social care needs, or Mr F’s needs as a carer, between November 2015 and January 2017, when Mrs F went into residential care. This is despite Mrs D and Mrs F’s GP contacting the Trust to follow these up.
- The Trust discharged Mrs F from its mental health service in June 2016 because her husband had refused further contact with her CPN. The Trust discharged Mrs F without:
- speaking with her on her own;
- assessing whether she had capacity to make her own decisions about further contact with mental health services, or
- making a properly considered and formally recorded decision that discharging her would be in her best interests.
- “time and decision-specific mental capacity assessments, best interest decisions [and] a social care assessment” of Mrs F; and
- a carer’s assessment of Mr F or a review of any earlier carer’s assessments.
- The Mental Capacity Act 2005 (MCA) came into force in 2007 and applies to the councils and NHS organisations. The Government published detailed statutory guidance, most recently in 2013 and in January 2016, to help organisations understand and meet their duties under the MCA. The law and guidance were not new at the time the Council asked the Trust to carry out a mental capacity assessment and the Trust should have known what to do.
- The concerns Mrs D was raising since late 2015 should have prompted the Council (or the Trust acting on the Council’s behalf) to offer Mrs F an assessment of social care needs and Mr F a review of his needs as a carer. Failure to do so was contrary to the Care Act 2014 and fault. Mr and Mrs F could have refused assessments of their own needs, if they had capacity to do so. The available information indicates it is more likely than not that Mrs F did not have the capacity to make that decision. So, the Council had a duty to assess her social care needs, unless it made a reasoned decision that was not in her best interests. It could not rely on Mr F refusing to allow an assessment of Mrs F’s needs.
- The Trust was acting on behalf of the Council when the Council asked it to carry out a mental capacity assessment and a best interest meeting regarding Mrs F’s social care needs. The Council has already accepted that it should have ensured the Trust carried these out. Failure to do so was fault. I consider it more likely than not that a formal best interests meeting would have decided an assessment of her social care needs was in Mrs F’s best interests.
- The available information indicates that Mr F:
- had capacity to refuse an assessment of his needs as a carer;
- was very reluctant to engage in any sort of assessment that might result in costs to him; and
- by 2016, had lost faith in the CMHT and was reluctant to engage with them further.
- because Mrs F’s husband denied them access;
- without having regard to Mrs F’s wishes; and
- without formally assessing her mental capacity or considering her best interests.
C – Complaint response and service improvements
- Mrs D complained to the Trust and Council in December 2017. Their joint response accepted that what happened should not have happened, and apologised to Mrs D. The joint response also said the two services (CMHT and social care) had learnt from what had happened, improved and put in place a more joined up approach since then.
- Mrs D was dissatisfied with this response as it did not provide evidence that the Council and Trust had put service improvements in place.
- As part of its response to Mrs D’s complaint, the Trust carried out its own investigation and produced a report into its findings. However, it did not give
Mrs D a copy of the report. This was fault. The Trust has now provided a copy of the report which I have shared with Mrs D.
- The Council and Trust held a telephone conference meeting with Mrs D as part of its complaint response. During that meeting, they explained what they had done, or would to, to prevent similar problems happening to others. But they did not confirm this in writing. This was in my view fault.
- The Council and Trust wrote to Mrs D at the end of the local complaints procedure, accepting that what happened to her mother and father should not have happened. They also apologised. I consider that the acknowledgement of fault and an apology were an appropriate way to address the injustice of distress and uncertainty to Mrs F’s family.
- The Ombudsmen would not usually expect organisations to show a complainant documentary evidence that they have implemented promised service improvements. However, it is understandable that the very brief written complaint response did not reassure Mrs D that the organisations would act to prevent the problems she had highlighted from happening again.
- The Council and Trust have now provided more detailed information in response to our enquiries.
Service improvements relating to safeguarding adults
- The Trust and Council can show that their current safeguarding adults policies are in line with the Care Act guidance and the local Safeguarding Adults Board’s policy.
- Since Mrs D’s complaint, the Council and Trust have also done the following to improve the way they deal with safeguarding adults.
- The Council’s safeguarding team provided two link officers who could give local teams safeguarding advice and guidance. This has now been replaced by the Trust having a full-time mental health psychiatric nurse in the Multi Agency Safeguarding Hub (MASH). This nurse supports the Council with identifying clients open to the Trust. The nurse also holds monthly sessions for Trust staff to discuss any issues relating to safeguarding.
- The Trust’s safeguarding lead has attended mental health team meetings to discuss joint processes and has organised ongoing training. All Trust safeguarding enquiries are copied to the safeguarding lead who is available to the staff member for advice if needed.
- The Trust includes discussions about safeguarding in team meetings and staff supervision sessions.
- The Council and Trust have reviewed and improved safeguarding recording on the shared electronic records system and trained staff on its use.
- The current “Safeguarding Adults Learning and Development Framework” includes a statement about the importance of all staff being able to escalate concerns and report poor practice and feel supported in doing so. The Framework says all staff should get training in understanding how to “whistleblow”. It also says managers should be trained in ensuring whistleblowing systems are in place, ensuring adherence to contractual agreements, and holding local agencies to account.
- The Council and the Trust are working on an improvement plan which will be available by the end of May 2019.
- “A Section 42 Safeguarding Enquiry is triggered [when] all three criteria are met as follows: The person is 18 years and older, and:
Has care and support needs (whether or not the local authority is meeting any of those needs) and;
Is experiencing, or at risk of, abuse or neglect, including some aspects of self-
As a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.”
- This misses out a crucial part of section 42 of the Care Act 2014, which says the Council has a duty to carry out or commission an enquiry when it has reasonable cause to suspect the adult meets those criteria. In other words, the Council only needs to a reasonable suspicion, not a certainty, that the above criteria are met, for it to have a duty to start an enquiry. The way the Council’s current procedure is written incorrectly sets the ‘threshold’ for starting an enquiry too high. This is fault that could lead staff following the procedure to repeat the flaws in Mrs F’s case.
- In Mrs F’s case, professionals from different organisations were raising concerns which should have led to a section 42 enquiry, but did not. One of the Council officers who raised the concerns registered their disagreement with the decision not to start an enquiry by sending an email to the safeguarding team. However, they did not escalate the matter. The Council’s new learning and development framework includes training on professional disagreement. However, neither the Council’s nor the Trust’s written procedures include information about how to formally challenge and request a review of a decision not to proceed with a section 42 enquiry, or a link to the SAB’s procedure for this. This is fault which could lead to staff not knowing how to escalate future disagreements about similar decisions.
- I therefore consider that:
- the Council and Trust have taken significant steps to address the problems within its safeguarding processes that were highlighted by Mrs D’s complaint;
- however, they have not yet fully resolved the flaws that led the problems Mrs F experienced. I have made recommendations to address this. The Council and Trust have accepted the recommendations and their agreed actions are set out below.
Service improvements relating to mental capacity, best interests, social care needs assessments and carers’ assessments
- In response to our enquiries, the Trust has said that since the problems Mrs D complains of, it has recruited four permanent social workers who will be able to support its teams in complying with the Mental Capacity Act 2005 (MCA).
- The Trust has also told us that its staff have had mental capacity training. However, it has not provided documentary evidence of training on the Mental Capacity Act 2005 and its response to our enquiries refers to “Mental Health Act Law” which appears to be a reference to the Mental Health Act 1983, rather than the Mental Capacity Act 2005. While the two laws are both important and relevant to the way the Trust provides its services, they relate to different powers and duties.
- The Council has provided evidence that its social care staff now have compulsory training in the MCA and that it has delivered 34 courses on the Care Act 2014 to staff since 2015. It has also acknowledged and explained what went wrong in
Mrs F’s case. I am therefore satisfied that the Council has learnt from what went wrong.
- The Trust, which acts on the Council’s behalf when assessing and meeting social care needs, has told us its staff have had Care Act 2014 training in late 2018. It has also done the following since Mrs D’s complaint.
- The older adults team has an adult social care ‘lead’ officer and four permanent social workers, whose role it is to support clinicians with social care matters.
- Trust staff have had training on how to use the Council’s social care assessment framework.
- The Trust has become part of a National Carers Trust programme and achieved an award involving promotion of carers’ rights. All community mental health teams now have ‘carers leads’ whose role is to make sure teams identify and address carers’ needs. The teams also have audits to check they are identifying carers and offering them assessments.
- To prevent similar problems with safeguarding recurring, the Council and Trust will do the following within three months of the date of my final decision.
- Work together to review joint working agreements, internal procedures, guidance, audit tools, training material and any other documents related to safeguarding, to ensure both organisations’ policies and procedures are up to date, in line with relevant law and guidance, and accurately describe both organisations’ responsibilities. Publicise any changes to make all relevant internal and external audiences aware. Provide evidence to the Ombudsmen that this has been done.
- Provide a copy of an improvement plan due in May 2019 to the Ombudsmen.
- Provide evidence of the monitoring of the effect of the improvements on safeguarding, in the form of a summary of results and any action prompted by the results.
- Ensure all CMHT staff providing social or mental health services are fully aware of the relevance of the MCA to their role.
- Provide evidence to the Ombudsmen that this has been done.
- There were faults in safeguarding Mrs F, assessing Mrs F and her husband, and in responding the Mrs D’s complaint. The Council and Trust have already accepted there were faults and apologised. This an appropriate way to address the injustice to Mrs F’s family. The Council and Trust have also taken significant steps to improve their services since Mrs D’s complaint. However, some of their processes and information for staff are still flawed. The Council and Trust have agreed to implement the service improvements we have recommended. The Ombudsmen have therefore completed their investigation.
Investigator's decision on behalf of the Ombudsman