Summary: There was no fault in the decision not to conduct a Safeguarding Adults Review because Mr B’s case did not meet the criteria for one. There was fault in dealing with Ms A’s correspondence as a complaint because she had not made one, a delay in signing off a safeguarding enquiry report and confusion caused by the Safeguarding Adults Board reversing its initial decision. When Ms A later complained, the Council took longer to respond than it should have done. The fault caused Ms A and Mr B avoidable distress. The Council will apologise within one month and take action to complete the independent learning review within two months.

The complaint

1. Ms A complains for a relative, Mr B about Sefton Metropolitan Borough Council (the Council). She complains about how the Council dealt with safeguarding concerns about Mr B, in particular:
1. There was a failure to conduct a safeguarding adults review (SAR), despite the case meeting the criteria for one; the chair of the safeguarding adults board (SAB) agreed one and then changed her mind;
2. There was a delay in responding to her referral and a delay by the chief officer and a councillor responding to her concerns about the safeguarding system;
3. Officers dealt with the matter as a complaint when she did not intend her letter to be treated as a complaint, but as a request for an SAR; and
4. There was a delay in completing the safeguarding enquiry.
2. Ms A says the Council’s actions and failings caused her and Mr B avoidable distress. She would like an independent view on whether the criteria for an SAR were met in Mr B’s case and if so, for the Ombudsman to recommend the SAB conducts one.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’ against councils in connection with their administrative functions. 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 can investigate complaints about SABs because they are an administrative function of a council, even though board members include other agencies whose individual actions we might not be able to investigate.
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)

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How I considered this complaint

6. I considered Ms A’s complaint and supporting documents, the Council’s responses to her complaint and the papers described in this statement. Both parties received two drafts of this statement and I took comments into account.

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What I found

Relevant law and guidance

7. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
8. Abuse includes neglect and acts of omission including ignoring medical, emotional or physical care needs and failure to provide access to appropriate health or care support. (Care and Support Statutory Guidance, paragraph 14.17)
9. A council must establish a Safeguarding Adults Board (SAB) for its area. The SAB’s role is to ensure local arrangements help and protect adults with care and support needs. An SAB’s members are: the council, the local clinical commissioning group, the chief officer of the local police and any other appropriate person. Two or more councils can establish a joint or combined SAB. (Care Act 2014, section 43 and schedule 2)
10. The purpose of a safeguarding adults review (SAR) is to identify lessons to be learned and apply those lessons to future cases. An SAB must conduct an SAR if:
• There is reasonable cause for concern about how the SAB, members of it or other relevant people worked together to safeguard an adult; and
• An adult with care and support needs has died and the SAB knows or suspects the death resulted from, abuse or neglect; or the adult is still alive and the SAB knows or suspects the adult has experienced serious abuse or neglect.

(Care Act 2014, section 44)

11. SABs must arrange a SAR if an adult in its area has not died, but the SAB knows or suspects that the adult has experienced serious abuse or neglect. In the context of SARs, something can be considered serious abuse or neglect where, for example the individual would have been likely to have died but for an intervention, or has suffered permanent harm or has reduced capacity or quality of life (whether because of physical or psychological effects) as a result of the abuse or neglect. (Care and Support Statutory Guidance, 14.163)
12. Merseyside SAB (the SAB) is a combined board of four councils (Knowsley, Liverpool, Sefton and Wirral). It formed in April 2017 and was in its first year at the time of this complaint. Each of the single council SAR groups was kept in place and this led to each group having its own approach and practice. The SAB has now agreed a single SAR group to start in early 2019.
13. The SAR procedure in place at the time of the events of this complaint said:
• The SAR group was responsible for advising the chair on whether or not the criteria for an SAR were met;
• An SAR was a multi-agency review to decide what agencies could have done differently that might have prevented harm or death and to trigger recommendations to improve services;
• An SAR was not intended to duplicate other procedures used to investigate serious incidents and other types of review could be an alternative should a request for an SAR not meet the criteria;
• The process for requesting an SAR, with target timescales, was:
1. On receipt of a referral or request, the SAB co-ordinator sent out papers for relevant agencies to complete and return within two weeks
2. The co-ordinator arranged an SAR group meeting to discuss the case within a week of receiving the papers from relevant agencies
3. The SAR group met to discuss the case and make a recommendation to the SAB chair within three weeks
• There was a right of appeal against the decision. The chair would review the decision and respond in writing. There were no timescales in the protocol for responding to an appeal. The person could also make a complaint. Officers worked to a target timescale of 25 working days to respond to a complaint about adult social care.
14. The Mental Capacity Act 2005 is the legal framework dealing with people who lack capacity to make decisions because of an impairment of the brain. If a person is assessed as lacking mental capacity to make decisions about healthcare treatment, then health professionals are able to treat the person, or take action in connection with treatment (such as taking the person to hospital) as long as the health professional:
• reasonably believes the person lacks capacity to make the decision about treatment; and
• it is in the person’s best interests to have the treatment.

The law allows restraint of the person in connection with treatment if it is necessary in order to prevent harm.

(Mental Capacity Act 2005, sections 5 and 6)

15. The Code of Practice to the Mental Capacity Act 2005 explains section 5 of the Act allows professionals to carry out certain tasks including healthcare or treatment of people who lack mental capacity to consent. The aim is to give legal backing to actions that need to be done in the best interests of the person. Chapter 6 of the Code of Practice says professionals should consider:
• Whether there is a less restrictive option available than the one under discussion
• If considering restraint, it must be necessary to prevent harm and a proportionate response to the likelihood of harm.

What happened

Background

16. Mr B has mental health problems and lives alone. He had a community psychiatric nurse (CPN) and a mental health support worker who visited him at home. Mr B’s medication was administered daily by the medication management team. Mr B became unwell over Christmas 2017. Mr B saw his GP, who arranged for Mr B to go into hospital for further tests and investigations. Mr B later cancelled the ambulance and did not go into hospital. Mr B continued to have daily contact with community-based health and social care services including his support worker and CPN. Mr B’s CPN found him on the floor at the beginning of January. He had had a stroke. Mr B was treated in hospital, had a social care assessment and agreed to a care package. Since coming out of hospital, Mr B lives at home with care calls three times a day.

Chronology

17. Ms A wrote to the chair of the SAB in January 2018 about Mr B’s contact with health and social care services over Christmas. She asked for a learning review. The letter said:
• There were concerns about Mr B’s health, he saw the GP who thought he may have had a bleed on the brain and advised Mr B needed to go to hospital. Mr B refused. The GP said Mr B lacked mental capacity to decide on whether he needed to be in hospital;
• The GP called an ambulance, but the ambulance service phoned Mr B who told the ambulance control room he would not go to hospital. So an ambulance did not attend;
• Mr B remained at home and the GP made a safeguarding referral. The CPN visited and took blood samples, establishing Mr B had a water infection. Mr B was prescribed antibiotics, with support workers visiting him twice daily to administer these and make him a meal;
• Ms A also contacted social care to make a safeguarding concern as she thought Mr B was not safe at home, explaining he had refused to go to hospital and was assessed as lacking capacity to make that decision. She said she thought there was something else going on with Mr B’s health as well as the water infection. Ms A spoke to a member of the safeguarding team, saying Mr B should have been taken to hospital using powers under section 5 of the Mental Capacity Act 2005;
• Mr B’s condition declined over the following days and his head and bottom lip drooped. The safeguarding officer advised Ms A should take Mr B to the GP surgery and the NHS would be investigating why the Mental Capacity Act was not used to take Mr B to hospital. Ms A said she did not live anywhere near Mr B and said she was at a loss as to how to get Mr B the medical help she believed he needed;
• The CPN visited Mr B at the beginning of January but he did not answer the door. The CPN eventually got in and found Mr B on the floor; he went to hospital. Doctors diagnosed a stroke;
• Ms A wanted a review because she considered the actions taken by agencies over Christmas failed to protect Mr B and Mr B had been seriously harmed by these omissions. She wanted to know why professionals did not consider using section 5 of the Mental Capacity Act to enable Mr B to go to hospital and receive treatment sooner. She said the different health professionals and council officers who had contact with Mr B over Christmas did not work together effectively to enable Mr B to receive timely treatment.
18. The chair of the SAB referred Ms A’s letter to the Director of Social Care and Health who referred it to the complaints team. The SAB told Ms A it would respond to her letter asking for an SAR as soon as possible, but wanted to understand how her request for an SAR fitted in with the complaints process.
19. The Council started a safeguarding enquiry at the start of January, before Mr B’s stroke. Officers met to discuss what information was needed from the agencies involved with Mr B.
20. The complaints team wrote to Ms A at the end of January saying her letter (paragraph 17) was the subject of a safeguarding enquiry and that two issues she had raised about staffing levels over Christmas would be addressed as a complaint. Ms A replied saying she was confused because she did not want to make a complaint. She said she wanted to know the outcome of her request for a review.
21. The Council’s complaints team wrote to Ms A explaining the Council was considering her concerns under safeguarding procedures, but it was treating two issues as a complaint including whether there were enough staff to respond to safeguarding matters over Christmas. Ms A replied saying she had not made a complaint and wanted an SAR. The complaints officer wrote to Ms A in February saying there would be a decision about an SAR in the next six weeks and there was an ongoing safeguarding enquiry and her complaint would be suspended until the decision about an SAR was made.
22. In February, Ms A emailed a councillor about her concerns. The councillor acknowledged receipt and referred the email to senior officers to reply.
23. The Head of Social Care wrote to Ms A in March saying the request for an SAR would be considered at the next SAR group meeting in March and meantime, the safeguarding investigation was ongoing.
24. The Council’s SAR group met in March to discuss Ms A’s request for an SAR. The note of that discussion said:

“Elements of the letter resulted in Mr B becoming the subject of a safeguarding enquiry, which remains open. Other elements of the letter were managed by the health and social care complaints officer but work on this complaint has subsequently been put on hold following a request by the family member.

Several agencies involved in the care and support of Mr B provided additional information and this was subsequently collated into the overview report shared with members prior to the meeting.

Following a great deal of debate and discussion it was unanimously agreed that there were several issues required to be addressed by various agencies but that the available detail surrounding the care and support of Mr B failed to evidence the need for a SAR. It was further agreed that the family of Mr B required a timely response”

25. The record of the SAR group’s discussion suggested members believed there was only involvement from a ‘single agency’. However, this was incorrect because the incidents involved more than one agency: duty social workers from the Council, Mr B’s GP, the ambulance service and members of the mental health team.
26. The chair of the SAB emailed Ms A with the outcome of the SAR group’s discussion saying Mr B’s case did not meet the criteria as he was only in touch with one agency (the NHS). Ms A objected and she and the chair spoke. The chair emailed Ms A at the beginning of April to say she had changed her mind and there would be an SAR.
27. An internal email from the chair to a member of the SAR group said there would be an SAR because the SAB’s work priorities included self-neglect.
28. The chair sought clarification from the SAR group about its reason for not recommending an SAR. One member of the group explained it was because Mr B ‘did not die nor was it considered that he experienced serious abuse or neglect.’
29. The chair wrote to Ms A in May 2018 saying an SAR would not now take place She said:

“Whilst it was recognised that there was much to learn from the experience of Mr B, the detail of the surrounding care and support available to him failed to evidence the need for a SAR based on section 44 criteria. Thankfully Mr B did not die nor was it considered that he experienced serious abuse or neglect as a consequence of the actions of the care and support services.”

The chair explained there would be a formal learning review instead of an SAR and that the Care Quality Commission (note: the chair meant the Clinical Commissioning Group, not the Care Quality Commission) was looking into complaints about NHS services and social care was looking at the response by the emergency duty team. The letter explained Ms A’s right to appeal or complain.

30. The Council continued with safeguarding enquiries. These included a report from the CCG about Mr B’s GP care and a report from the ambulance service. The safeguarding report of June 2018 said:
• The GP assessed Mr B as needing hospital care and lacking mental capacity. The GP requested an ambulance;
• The ambulance was delayed and the control room spoke to Mr B. He cancelled the ambulance saying he would go to the GP in the morning. The ambulance service should have phoned the out of hours GP to update them but this did not happen. So the GP believed the ambulance had attended;
• The GP did not share the capacity assessment with the ambulance service. The ambulance service said the crew would have asked for police assistance if they had been told Mr B was likely to refuse admission and he had been assessed as lacking mental capacity;
• There was also no evidence of any capacity assessments or best interests’ decisions about Mr B being treated in the community when it was discovered an ambulance did not attend;
• No-one could conclude the stroke would have been prevented had Mr B been admitted to hospital as planned;
• There was a social care assessment while Mr B was in hospital and he now had a care package in place to support him and this reduced the risks;
• The ambulance manager who cancelled the booking had received a learning session. The GP would also receive feedback from the CCG;
• The allegations of abuse were ‘partially substantiated.’
31. The recommendations from the safeguarding enquiry were:
• When professionals contacted the ambulance service, they should tell the operator if a patient lacked mental capacity and if they were likely to refuse admission. This was so the crew could be made aware to contact the police for support;
• The GP should have done an urgent follow up visit when he became aware Mr B refused to go to hospital in order to carry out a further capacity assessment and make a best interests decision about community treatment or hospitalisation;
• Adult social care should have a standard practice of advising GPs who contact its safeguarding team that GPs should carry out capacity assessments and make best interests decisions where patients require urgent hospital treatment.
32. The Council’s records indicate the recommendations of the safeguarding enquiry were shared with the CCG and ambulance service and within social care and mental health services.
33. Ms A complained to the Council at the end of May about the matters she raises with us.
34. The Council responded to most of Ms A’s complaints in July 2018 saying:
• There was a delay of a few days in responding to Ms A’s request for an SAR. It took officers 11 days to meet to discuss the information, when the target timescale in the procedure was 7 days;
• The Director of Social Care and Health decided to deal with her letter of January 2018 as a complaint to ensure her concerns were addressed;
• There would be a separate response to her complaint about the decision not to conduct an SAR;
• The Council was waiting for information from the ambulance service and CCG before it could complete the safeguarding enquiry;
• It could not compel agencies to produce the information and the officer responsible had escalated this in line with procedures.
35. The Council’s final response Ms A’s complaint in August said the chair of the SAB initially agreed there would be an SAR. The chair changed her mind after discussing the case with the chair of the SAR group for Sefton. The chair wrote to Ms A to explain the reason for changing her mind, said there would be a learning review instead and apologised for the confusion.
36. A manager signed off the safeguarding report at the beginning of November. The report said that the social worker had informed Ms A and Mr B of the outcome of the safeguarding enquiry and they both received a copy of the report.
37. Since issuing a first draft of this statement, the Council shared a draft version of the learning review with Ms A. Ms A has made some comments. The SAB has appointed two independent reviewers to consider the draft learning review and will include Ms A’s comments and views. The final review will be discussed at the SAB’s formal meeting.

Comments from Merseyside SAB

38. The SAB told me the purpose of an SAR was not to investigate cases or address case management issues but to look retrospectively at cases to consider if practices and systems could be improved to prevent recurrence.
39. The chair commented:
• There was little information from the SAR group to explain why they did not recommend an SAR;
• The papers suggested there was only one agency involved with Mr B’s care;
• She did not want to keep Ms A waiting and key staff were on leave’;
• She had a further discussion with key staff and changed her mind about the criteria for an SAR being met; and
• There would be an independent learning review to address Ms A’s questions. This would be shared with all SAB members.
40. The SAB also told me:
• The reason the chair did not recommend an SAR was that there was no evidence of abuse or neglect. Mr B received multiple daily visits from CPNs during the week after the incident until the day of his stroke; tests took place in the community when he refused to go to hospital and he received medication for a urine infection;
• The draft learning review had identified some discrepancies in the GP’s account of what he did at the time as compared with the contemporaneous records. This information was not known at the time and it would be unfair to rely on it to criticise the SAB’s decision not to conduct an SAR.

Comments from the Council

41. The Council told me the use of section 5 of the Mental Capacity Act was not appropriate because of the likely high resistance by Mr B. The Council considers there would have needed to be a court order in place before removing Mr B to hospital.

Comments from Ms A

42. Ms A pointed out that at the time of her complaint to the Ombudsman neither she nor Mr B had heard anything from the Council about the learning review or about the outcome of the safeguarding enquiry. She only got an update on the progress of the learning review in November 2018 and a copy of the draft learning review in December. She got a final copy of the safeguarding report at the end of November.

Was there fault and if so, did this cause injustice requiring a remedy?

43. SABs involve council officers and other agencies, but the responsibility for establishing and maintaining the SAB is a council’s. As the statutory function is a council one, any fault in the SAB’s decision making we would regard as fault by the Council.

Complaint (a): There was a failure to conduct a safeguarding adults review, despite the case meeting the criteria for one; the chair of the safeguarding adults board (SAB) agreed one and then changed her mind

44. The criteria for an SAR are in section 44 of the Care Act 2014. They require a council to conduct one when:
1. there is a concern about how agencies worked together and
2. serious abuse or neglect is known or suspected.
45. The SAB’s reasons for refusing an SAR in March 2018 were because Mr B’s injuries were not considered serious enough and there was no evidence at the time of the decision that Mr B had suffered abuse or neglect because he had received daily visits from health professionals including treatment for a water infection. Ms A’s view was stated in her letter: she considered there were serious issues with inter-agency working including about professionals understanding of the Mental Capacity Act and this led to Mr B’s neglect because he did not get admitted to hospital for treatment under powers in section 5 of the Mental Capacity Act 2005.
46. On balance, there was no fault in the decision not to conduct an SAR for Mr B’s case. I have taken into account that:
• The decision should only be assessed based on information known at the time of the decision and not based on information that has come to light later (such as the findings of the safeguarding enquiry or the draft findings of the learning review)
• Mr A received treatment in the community. So the use of section 5 of the Mental Capacity Act may not have been warranted and may not have protected the ambulance staff, had they used it to convey him to hospital, because a less restrictive option than transfer to hospital with restraint was available. I consider it was open to the SAB chair to conclude on the basis that Mr B received community treatment, that there was no suspicion of serious abuse or neglect. This means one of the criteria in section 44 of the Care Act 2014 was not met and so there are no grounds for me to criticise the decision.
47. The chair of the SAB told us she agreed an SAR before seeking clarity and additional information from the SAR group. It was fault to do this and caused Ms A avoidable confusion. The chair should have waited for the information she required before telling Ms A there would be an SAR. I can see why the chair was confused about what information the SAR group had relied on as the form wrongly said members thought Mr B was only in contact with one agency. Initial record keeping by the SAR group was unclear and this is fault which caused avoidable confusion.

Complaint (b): There was a delay in responding to her referral and delay by the chief officer and cabinet member responding to her concerns about the safeguarding system

48. The procedures in place at the time said a request for an SAR would be decided within six weeks. Mr B’s case took nine weeks. While this was longer than ideal, it was not a significant delay and so I do not uphold this complaint. I have taken into account that the timescales are target ones and there is no statutory timescale.
49. The Council works to a timescale of 25 working days for complaint responses. It took the Council about two months to respond to most of Ms A’s complaints and a further month to reply to the remaining ones. The Council pointed out in response to a draft of this statement that the timescale for complaint responses was not a statutory one and it had kept in touch with Ms A about the reasons for the delay. On balance, this is still a delay in complaint handling and was fault.

Complaint (c): The Council dealt with the matter as a complaint rather than be considered by the SAR group. Ms A says she did not intend her letter to be treated as a complaint

50. It is common for complaints to be paused during a safeguarding enquiry and we would not be critical of this approach if Ms A had in fact made a complaint to the Council, but she had not at this stage: she wanted the SAB to respond to her request for an SAR. The Council acted with fault by dealing with the matter as a complaint, when one had not been made.

Complaint (d): There was a delay in completing the safeguarding enquiry.

51. The safeguarding enquiry started in January and the enquiry report suggested the recommendations were fed back to relevant agencies in August. There are no timescales in Care and Support Statutory Guidance or in the Care Act for concluding enquiries and our approach is to look at each case individually. In this case, I have taken into account there were three agencies required to provide reports (the CCG, mental health team and ambulance service). There appears to have been delay by other agencies in providing information and this was not entirely in the Council’s control. I consider eight months is an appropriate timescale in this case and so there was no fault.
52. The enquiry report was not signed off by a manager until November. Sign off should have happened sooner and this was fault.

Agreed action

53. Ms A wants us to recommend the Council conducts an SAR. I have not recommended this because the criteria in section 44 of the Care Act were not met in Mr B’s case, for the reasons given in paragraph 46.
54. I have upheld Ms A’s complaints about:
• The chair telling Ms A there would be an SAR then changing her mind after speaking to colleagues
• Dealing with the matter as a complaint when she had not made a complaint
• A delay in signing off the safeguarding enquiry report and in responding to her complaint
55. The Council has accepted my recommendation to:
• Apologise to Ms A and Mr B for the fault identified in this statement within one month of my final decision;
• Involve Ms A and Mr B in the learning review, including considering their comments on a draft of the learning review
• Complete the review within two months of my final decision and ensure Ms A and Mr B receive a copy.

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Final decision

56. There was no fault in the decision not to conduct a Safeguarding Adults Review because Mr B’s case did not meet the criteria for one. There was fault in dealing with Ms A’s correspondence as a complaint because she had not made one, a delay in signing off a safeguarding enquiry report and confusion caused by the board reversing its initial decision. When Ms A later complained, the Council took longer to respond than it should have done. This caused Ms A and Mr B avoidable distress. The Council should apologise within one month and take action to complete the independent learning review within two months.
57. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman