North Yorkshire County Council (18 011 387)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 20 Feb 2019

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s safeguarding investigation following respite care her husband received. The Council was at fault when it recorded an inconclusive decision based on criteria which is not in line with the law, guidance or its own policy, and did not reflect the findings of its investigation. This caused distress for Mrs X. The Council is in the process of reviewing its policy and procedures to make them compliant with the Care Act. There were also delays in the Council’s investigation, although these did not cause a personal injustice. The Council has agreed to apologise and make a new decision, considering removal of the inconclusive decision. It has also agreed to issue a staff reminder and analyse safeguarding timescales to assess whether the same faults have impacted on others.

The complaint

  1. Mrs X complained about the Council's safeguarding investigation following respite care her husband received at Leeming Bar Grange Care Home in September 2017. The Council's investigation was inconclusive because it could not identify one person at fault. However, Mrs X felt it still should have been able to come to conclusions on the care provided to Mr X, which put him at risk. Mrs X did not feel the Council’s investigation helped, and she has experienced distress from a long process of investigation without a satisfactory outcome.

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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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

  1. For this investigation, I:
    • considered the information Mrs X provided and discussed the complaint with her;
    • made enquiries of the Council and considered the comments and documents it provided;
    • looked at the relevant law and guidance, including the Care Act 2014;
    • considered the Ombudsman's guidance on remedies; and
    • wrote to Mrs X and the Council with my draft decision and considered their comments.

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What I found

  1. Councils must make enquiries, or cause others to do so, if they reasonably suspect an adult with needs for care and support is, or is at risk of, being abused or neglected. Enquiries aim to achieve several things, including establishing facts and deciding what follow-up action should be taken regarding the person or organisation responsible for the abuse or neglect.
  2. The Care and Support Statutory Guidance (“the statutory guidance”) lists the key principles that underpin all adult safeguarding work. One of these is accountability. The West and North Yorkshire and York Multi-Agency Policy and Procedures for Safeguarding Adults also reflect the principle of accountability. They say this involves “making informed defensible decisions, with clear lines of accountability”.
  3. The policy and procedures say the Council:
    • will hold a strategy meeting within five working days of receiving an alert; and
    • will hold a case conference and make decisions within eight weeks of the strategy meeting.
  4. One form of abuse is neglect and acts of omission. The policy and procedures say “Neglect and acts of omission concern the failure of any person who has responsibility for the care of an adult at risk to provide the amount and type of care that a reasonable person would be expected to provide”. This section talks specifically about “the individual” alleged to have neglected a person.
  5. However, both the statutory guidance and the policy and procedures refer to “people and organisations” who are alleged to have caused harm to an adult. There is no requirement for the Council to identify one individual as responsible for causing harm, for a safeguarding inquiry to reach a conclusion.
  6. The statutory guidance and the policy and procedures define organisational abuse as another type of abuse. The policy and procedures explain “Whilst there is no single definition of organisational abuse it refers to those incidents of abuse that derive, to a significant extent, inadvertently or otherwise, from an organisation’s practice, culture, policies and/or procedure”. It explains organisational abuse is defined by certain characteristics. For example “It is evidenced by repeated instances”… “It is generally accepted – it is not seen as poor practice”… and “It is systemic (e.g. factors such as a lack of training, poor operational procedures, poor supervision and management all significantly contribute to the development of organisationally abusive practice)”.
  7. The policy and procedures say “It is necessary to establish whether, on the balance of probabilities, abuse has occurred”. They say “The decision will need to be made on the basis of the evidence obtained within the Formal Enquiry”. It says the Council should record an inconclusive decision where there is not enough evidence to allow it to reach a conclusion. It says this will include cases where, for example, someone had passed away before they could provide statements as part of the assessment or enquiry.
  8. The Council, along with other organisations who use the same policy and procedures, is currently reviewing the document. The new document aims to move away from recording decisions as “substantiated”, “unsubstantiated” and “inconclusive” due to the Care Act placing emphasis on identifying action needed to protect people from harm. The Council stressed the practice of substantiating abuse is no longer considered effective or meaningful.

What happened

  1. Mr X received two weeks respite care in September 2017 while Mrs X was on holiday. Mr X’s family noticed blisters on his legs and the day before his return home, the care home contacted Mr X’s GP. The GP prescribed antibiotics without seeing Mr X, based on information the care home provided. The care home collected the antibiotics and brought them to Mr X the following day. His GP diagnosed cellulitis.
  2. In November 2017, a Council officer telephoned Mrs X to discuss support. They discussed respite and Mrs X told the advisor she was no longer confident about Mr X going for respite at care homes. They discussed the experience Mr X had at the care home and the advisor decided to raise the concerns as a safeguarding alert. Mrs X’s main concern was that daily skin checks and basic personal care would have prevented Mr X’s leg getting to the point it did. She says the delay in collecting antibiotics compounded this.
  3. The Council carried out initial enquiries, visiting the care home and contacting
    Mr X’s GP. At the beginning of December, the Council recorded “Risk of abuse is high, extent of abuse is moderate however there are a number of unanswered questions”. The Council held a strategy meeting in January and decided to progress to a formal safeguarding enquiry. The attendees at this meeting discussed that the care home should have monitored Mr X’s skin due to the information provided to it suggesting his skin was at risk. The attendees discussed that it was important for Mr X to mobilise as this may have affected his skin integrity.
  4. The Council carried out enquiries and its investigation found:
    • The care home did not complete necessary paperwork on Mr X’s admission to the care home and it did not record why, or when it later completed this. The care home had since updated its admission tool to include steps including change of GP for residents that had GP surgeries out of area.
    • Records kept in daily notes were not meaningful or person-centred, and did not include clear evidence of what support the care home gave to Mr X around sleeping at night time.
    • Carers assisted Mr X to have a full body wash on three occasions between his family first noticing his legs being swollen, and the date of contacting the GP. They recorded poor skin integrity on the date they contacted the GP.
    • Despite the care home knowing Mr X needed encouragement to wash and mobilise, there was no clear evidence of them giving any motivation and encouragement to Mr X during his stay at the care home. Carers recorded twice that he refused support, although they did not record what support they offered.
    • The care home had commented it was not a nursing home and should not be expected to identify cellulitis. However, its policy contradicted this, saying team members should have training to be able to monitor skin and identify problems.
    • It would have been beneficial for the family member to have raised their concerns with the care home when they first noticed an issue. However, the care home should have noticed the issue and taken action sooner.
    • There had been “clear failings to prevent, identify and then treat [Mr X’s] cellulitis… however there are no identified… persons alleged to have caused harm. It would appear that the failings are systemic in that there are a number of areas where Leeming Bar Grange staff did not follow their own policies or procedures. It is recognised that actual harm has occurred, however there is insufficient evidence to allow a conclusion to be reached regarding one specific individual who has caused harm; therefore my recommendation is that this safeguarding concern outcome is inconclusive”.
  5. The Council recommended the care provider responsible for the care home (the Care Provider) should take several actions. This included reviewing its policies and procedures to ensure it had clear processes when an individual moved to the care home for respite. It also included staff training.
  6. The Council held a meeting in April 2018. The GP had advised while it was difficult to say what impact 13 hours delay in getting the medication had, this would have had an impact on Mr X. The GP told the Council, regardless of medical training, Mr X’s skin would have been hot to the touch. The Council recorded the safeguarding enquiry outcome as inconclusive for neglect and acts of omission. Mrs X made clear at this meeting she was not happy with the outcome.
  7. Mrs X told the Council’s enquiry officer three more times in April she was not satisfied with the outcome. She highlighted the Council had established Mr X was neglected. At the end of May 2018, the Council closed the safeguarding case.
  8. Mrs X complained to the Ombudsman in July as she was unhappy with the outcome of the Council’s safeguarding investigation. She did not think it was correct to record the outcome as inconclusive, just because the Council could not attribute failures to one individual. She said this would be impossible when care is provided by a team. She felt the Council’s inconclusive decision did not match the investigation’s findings and provide accountability. Mrs X said while the Council was kind and supportive, she experienced distress through a long investigation without a satisfactory outcome.
  9. The Council told me “The outcome of the safeguarding enquiry was inconclusive and not able to substantiate abuse by a particular individual/s, but the enquiry did identify actions that the home needed to undertake and North Yorkshire County Council’s contract monitoring team have visited the service requesting an action plan in relation to the recommendations made”.

Analysis

  1. Both the statutory guidance and the Council’s policy and procedures refer to abuse or neglect by a person or organisation. The statutory guidance and the Council’s policy and procedures also identify organisational abuse as one type of abuse or neglect. There is no requirement that abuse or neglect must be shown to have been carried out by one named individual for a council’s safeguarding enquiry to reach a conclusive finding about abuse or neglect at an organisational level. Being unable to identify a responsible person did not therefore mean the Council could not reach a conclusive finding.
  2. The Council’s enquiries concluded there were failings by the Care Provider and Mr X came to harm as a result of these. It noted the failings were systemic and, in several areas, the staff at the care home had not followed their policies and procedures. The Council recorded an inconclusive decision for the category of neglect or acts of omission, because no one person was alleged to have caused harm. It should also have addressed the question of whether its findings constituted evidence of organisational abuse.
  3. The Council is best placed to decide whether organisational abuse has occurred. The Council did not consider this and instead closed the case, despite Mrs X raising concern that its decision did not reflect its investigation’s findings.
  4. The Council’s policy and procedures stress the importance of coming to a decision on the balance of probabilities, and it gives examples of scenarios where an inconclusive decision may be appropriate. The examples do not reflect the circumstances of this case. The guidance and the Council’s policy and procedures stress the importance of accountability, and in this case the Council’s recording of the outcome as inconclusive does not appear consistent with its findings relating to accountability for the harm Mr X came to.
  5. The policy and procedures are in the process of being changed. However, the Council recorded a decision in Mr X’s case based on unwritten criteria. The Council has not provided satisfactory explanation for recording the decision as inconclusive at the time, given its policy and procedures which have not yet formally changed. This is fault.
  6. This did not cause an injustice for Mr X, who had already returned home and was not at further risk. The inconclusive decision also did not, in effect, alter the outcome. The Council made appropriate recommendations requiring improvements from the Care Provider. I cannot say these recommendations would have been substantially different had the Council recorded a different decision.
  7. However, Mrs X experienced distress due to the Council’s flawed decision-making process. This compounded the already significant distress she had experienced because of Mr X’s experience at the care home. In the specific circumstances of this case, I am satisfied this fault caused Mrs X a significant injustice.
  8. The Council’s practice in this case was not in line with the policy and procedures in effect at the time of the decision. The Council has changed its practice before changing its policy and procedures. However, having read the new policy and procedures I am satisfied they aim to make safeguarding enquiries more in line with the principles of the Care Act. The new procedures will move away from recording decisions as “substantiated”, “unsubstantiated” and “inconclusive” due to the Care Act putting the emphasis on identifying action needed to protect people from harm. The Council told me it will provide clearer guidance to families where a decision is not recorded as substantiated. This is appropriate.
  9. The Council took seven weeks from the safeguarding alert to hold a strategy meeting. Its procedures allow five working days. The Council took 12 weeks after its strategy meeting to hold the case conference. Its procedures allow eight weeks. These significant delays are fault. Mr X was not at risk as he had already left the care home. The delays also did not prevent enough evidence being gathered. Therefore, this did not cause a personal injustice. However, I am concerned there may be others affected by delays within the service and I have used my powers to make a recommendation relating to this.

Agreed action

  1. The Council has agreed to apologise to Mrs X. It should do so within one month of my final decision and provide evidence to the Ombudsman.
  2. The Council has agreed to make a new decision about the conclusion of this safeguarding investigation, properly considering the law and guidance and its own policy and procedures. This should include consideration of whether organisational abuse has occurred, and consideration of whether it should record a different decision or remove the inconclusive decision. It has agreed to make its decision within two months of my final decision, and to then write to Mrs X and the Care Provider within three months of my final decision sharing the outcome. It should provide evidence to the Ombudsman of how it has considered this decision and it should provide us with copies of its letters to Mrs X and the Care Provider.
  3. The Council has agreed to issue a staff reminder within one month of my final decision. This will remind the relevant officers that abuse or neglect do not have to be carried out by one identified individual to result in a conclusive outcome. It should provide a copy of this reminder to the Ombudsman.
  4. The Council has agreed to carry out an analysis of its timescales for holding strategy discussions and case conferences, to find out whether it is completing these within reasonable timescales. It is open to the council to decide on a suitable sample size of cases to inform this analysis. Where its analysis shows delays, the Council should create an action plan to show how it will reduce the timescales to acceptable levels. It should provide its analysis and action plan to the Ombudsman within three months of my final decision.

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Final decision

  1. I have found fault causing injustice to Mrs X and potentially others. The Council has agreed to the action I recommended to recognise this injustice and prevent reoccurrence of the same fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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