The Ombudsman's final decision:
Summary: Mrs B complains the Council did not ensure her father, Mr C, received an adequate level of support with his medications and care. She says he often missed medications, which contributed to incidents of confusion and incontinence. She says carers falsely signed medication records. The Ombudsman finds fault in the care provided, in a lack of oversight and assessment of Mr C’s care needs, and the lack of investigation into allegations around medication recording.
- The complainant, who I refer to as Mrs B, complains about the care Mr C received from a Council arranged care provider, Novus Care (“Novus”). Mrs B says Novus did not re-order Mr C’s prescriptions, collect medication from the pharmacy or administer medication on numerous occasions. Mrs B says that, following Mr C’s death in mid-2019, she found a box full of medication that carers should have administered. She says carers must have recorded having given medications that they had not.
- Mrs B also says she found Mr C had suffered severe incontinence and had faces stains all over his furniture. She says this was linked to him not receiving his prescribed medication for incontinence.
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. 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)
- 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 investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
How I considered this complaint
- I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to the Council and Mrs B before making a final decision.
What I found
Law and Guidance
- The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has.
- Section 27 of the Care Act 2014 gives an expectation that local authorities should review a care and support plan at least every 12 months. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
- The Care and Support Statutory Guidance says, ‘if there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision’.
- The Mental Capacity Act (“MCA”) 2005, provides that a person lacks capacity in relation to a matter if at the material time he is unable to decide for himself. A person is unable to make a decision if they cannot:
- Understand information about the decision;
- Retain that information in their mind;
- Use or weigh that information as part of the decision-making process; or
- Communicate their decision
- The Council arranged care for Mr C over several years, to support with his long-standing depression and schizoaffective disorder. Mr C was first known to the Council in 2008 after spending time in a local psychiatric hospital. The Council arranged his care from 2015 onwards.
- In June 2017 the Council completed an up-to-date care assessment. The assessment said Mr C had shown some signs of a mild cognitive impairment and was due to receive further testing for this. It said he experienced some difficulties with his memory. It said his medication was organised in a pack that he collects from his local pharmacy. It said Mr C needs prompting to remind him to take his medication but is generally aware of what he is prescribed and what it is for. The assessment says Mr C has experienced regular, daily episodes of diarrhoea for the past two years.
- The Council continued the existing care plan of two daily visits by carers to support by preparing meals and prompting Mr C with personal care and medications.
- Mr C was prescribed the following medications:
- Omeprazole 20mg – 1 x daily
- Mirtazipine 30mg – 1 x daily
- Ensure drink – 3 x daily
- Loperamide 1mg/5ml – when required (PRN)
- Adcal-D3 – 2 x daily
- Aspirin 75mg – 1 x daily
- Atorvastatin 40mg – 1 x daily
- Olanzapine 10mg – 1 x daily
- I have addressed Mrs B’s concerns under the following heads of complaint:
- Record keeping
- Assessment, care planning and capacity
- Collecting medications
- Administering medications
- Incontinence and personal care
- Double payments
- I find fault in both the Council and the Novus’ record keeping.
- It is important to keep clear records of all social care actions. Novus were instructed on behalf of the Council. This means the Council was ultimately responsible for any care it provided. It is therefore important the Council could access any primary care records as an when needed.
- I asked the Council for all MAR charts for Mr C from January 2018 to June 2019. However, it has only been able to provide two MAR charts for May and June 2019. It is clear from the safeguarding investigation report that it obtained MAR charts from Novus going back to at least January 2019. It is also clear from Mrs B’s complaint that she made a freedom of information request, following which the Council provided her with most of the MAR charts from January 2017 to June 2019. However, several of the charts were missing in 2017 and September 2018.
- It is not clear why the Council did not keep these records or why it has not been able to obtain them again from Novus. The Council says Novus no longer operates in its area so it could not obtain further records. However, I note Novus is still operating elsewhere and is contactable.
- It is also not clear why Novus did not retain the MAR chart for September 2018, or others in 2017. I have not pursued this further as I can make a decision on the complaint without the charts. Also, Mrs B has provided most of the charts for 2018 and 2019, with some gaps where the Council could not provide them to her. However, the lack of record keeping generally on the part of the Council and Novus is fault.
Assessment, care planning and capacity
- The Council is at fault for not regularly reviewing and updating Mr C’s assessment and care plan.
- The Council did not review Mr C’s care plan every 12 months as normally required. It was nearly two years between the reviews in June 2017 and April 2019. During this time there were significant changes to Mr C’s needs and the support carers provided. Therefore, the Council should have reviewed the care plan earlier than 12 months in any case.
- It should have reviewed the care plan in early 2018 when it introduced a locked box and when carers started collecting medications. These were significant changes to the way in which Novus delivered care to Mr C. It meant carers went from prompting Mr C to take medications of his own accord, to having responsibility to ensure he received the correct medications from the pharmacy, and control over when they were available for him to take.
- The fact the Council did not complete a review meant there was no clear guidance to carers on how to manage this role. It is very likely this contributed to the occasions when carers did not collect or administer medications, gave the wrong number of Ensure drinks, and gave Loperamide twice daily when it was meant to be PRN.
- Even when the Council completed a review in April 2019, the care plan only briefly mentions that care staff are to collect and prompt medications. It does not mention anything about mediation being kept in a locked box. It does not give any clear instructions to carers about how to manage the medications. There is no evidence the Council at any point ensured carers had the proper knowledge or guidance on how to support with Mr C with his medication. This is fault. Novus is also at fault as it should have ensured any of its carers that were engaged in support with medications had the knowledge and guidance to safely carry out that role.
- I also find fault in how the Council considered Mr C’s capacity.
- It is clear carers and the Council had concerns about Mr C’s ability to manage his own medications. I can see recorded in the case notes that social workers questioned whether he had the capacity to manage his own medications. The Council did not complete a mental capacity assessment as it found a solution in the locked box. I do not criticise this as, even though Mr C might not have had capacity to manage his medications, there were no concerns about his capacity to consent to the locked box and support from carers.
- For most medications, the decision was already made that Mr C needed a certain dose at a certain time of day. The problem was not with him deciding what he needed but generally remembering when to take what. However, the Loperamide was different in that Mr C needed to make regular decisions about if and when he needed the medication.
- Given the Council’s clear concerns about Mr C’s ability to manage medications, it should have properly considered whether to complete a mental capacity assessment about whether he could make decisions about when to take Loperamide. There is no evidence it did so. The fact Mr C regularly took Loperamide twice daily when prompted by carers adds weight that there were enough concerns about his ability to make his own informed decisions, that the Council should have assessed his capacity. Even if it found he had capacity, it should have given clear guidance to carers on how to support with PRN.
- I note the fact the medication was in a locked box meant Mr C could not make decisions throughout the day about when to take Loperamide, only when carers offered this. There is nothing about this in the Council’s assessment, which again shows the Council did not give any consideration to the different way in which carers needed to treat a PRN medication.
- The correspondence between the Council, Novus and Mrs B evidence that there were occasions in early 2019 the care agency deliberately did not collect medications because the Council had not commissioned it to do so. The Council is at fault for not updating Mr C’s care plan and commissioning the care agency to collect medications.
- I cannot see any exact dates for when carers did not collect medication in any of the records provided. I cannot, therefore, cross reference and establish for certain whether occasions carers did not collect medications directly led to not enough medication being available for Mr C to take. However, I note the safeguarding report and information from Mrs B both show there were multiple occasions in each of the first months of 2019, on which carers did not sign for several of the medications.
- It is more difficult to establish whether there were other occasions on which carers did not collect medications throughout 2018 and 2019 when they should have done. The safeguarding report and information from Mrs B evidence that often carers did not record the administration medications. However, it is not clear in each case if this was because medications were not available, or it was available but not administered, or the administration was simply not recorded.
- The safeguarding report confirms there were frequent omissions of signatures for Ensure Drinks and Loperamide in particular. However, it suggests the problem was with carers giving the medications too often and them running out early, as opposed to carers not collecting medications at the normal times.
- Mrs B has provided a handwritten note of dispense dates for Loperamide and Ensure drinks, she obtained from the pharmacy. Mrs B says these show the dates medications were available and, when cross-referenced with times they were not given on the MAR charts, show that carers did not collect medications. I have not made any findings based on this evidence.
- Dispense dates would be the dates the pharmacy dispensed the medication to the carers, i.e. the carers collected them. If so, the dispense dates provided suggest carers regularly collected medications every three to four weeks without any significant gaps. However, Mrs B is suggesting that they show when the medication was available and not necessarily collected.
- I do not have the primary documents showing when medications were available to collect and when they were in fact collected. I have not made further enquiries of the pharmacy as I do not consider it would be proportionate in this case. I have enough information to find fault in the overall medication management, including not collecting and administering medications. Any further investigation is unlikely to significantly alter my findings or recommendations.
- There is enough evidence of significant fault in administration of medication for me to reach a decision based on the information available.
- Mrs B reviewed the MAR charts from her freedom of information request. She completed a table showing the number of times between January 2017 and June 2019 that carers did not sign for medications. From April 2018, the point at which the Council introduced a locked box, to June 2019, Mrs B has recorded 289 times that carers did not sign for medications. Mrs B has also provided the MAR charts she relied on, which confirm the number of missed doses. There are gaps in the recording for all of the Mr C’s medications.
- The safeguarding investigation only looked back to January 2019. It found at least 12 days on which carers did not sign for one or more of the Nomad pack, Mirtazipine or Omeprazole between January and May 2019. This is evidenced in the MAR charts provided. The report only mentions one day in May 2019 where Mrs B’s table suggests more days. I have the MAR chart for May 2019 and can see three days on which carers did not sign for one or more medications.
- The safeguarding report says gaps on the MAR charts for the Ensure drinks and Loperamide were more frequent. I can see from the May 2019 MAR chart that Ensure drinks were unavailable for a week and Loperamide for more than two weeks. Neither were then available for over a week in June 2019 before Mr C passed away. I can see from the MAR charts before this that there were frequent gaps in recording that carers had given Ensure drinks and Loperamide.
- The safeguarding report found recording of medications was inconsistent. It did not make any findings about whether carers offered or made the medications available to Mr C when they should have done. It also did not address Mrs B’s concerns about the falsification of records.
- There are significant gaps where there is no record of medication being administered to Mr C, and those gaps appear regularly over a long period of time. The most common gaps are for Ensure drinks and Loperamide but there are also gaps for his other medications including the nomad pack without any explanation on the MAR charts for the omissions. I therefore find fault in the administration of medication by carers.
- Another example of fault is that Novus did not ensure it had clear, up to date MAR charts for its carers to follow. I can see that in February and March 2019 Loperamide was prescribed for Mr C. However, Novus did not update Mr C’s MAR charts. Loperamide did not appear on the MAR charts until April 2019. It then frequently ran out too quickly because carer gave it as a regular prescription rather than PRN.
- The MAR charts for November 2018 to February 2019 says that carers should give three Ensure drinks. This was incorrect as it should have been two doses a day. This meant Ensure drinks ran out too quickly as carers were giving too many. The pharmacy later corrected this with Novus. However, the subsequent MAR charts are not clear about how many drinks carers should give each day. There are still occasions when carers have signed giving three drinks rather than two, which again would have contributed to the drinks running out and not being available to administer.
- I also find fault in relation to the medications for May and June 2019.
- I can see from the photographs the medications are dated 30 April 2019. The medications were dispensed in four-week batches. It follows that these are the medications for May 2019. I can see at least two, weekly, Nomad packs. One has a clearer picture, and I can see it has the full medications for that week. The other is partially covered, but I can see it also contains medications. Mrs B says there were in fact four packs, but the other photos were so blurry she deleted them.
- The photo with the Mirtazipine shows at least 17 pods. It looks as though some of the pods are empty as they have an indentation and others are full as they do not. It cannot say for certain how many contain tablets but based on the pods with no indentations, it is likely around six or seven at least. The same is true of the Omeprazole, for which there appears to be around eight remaining. The other box, on which I cannot make out the name, says 30mg so is likely to also be Mirtazipine. This appears to have around seven to nine tablets remaining. However, I cannot make out the date it was dispensed so cannot compare this to the signatures on any MAR charts.
- Both Mrs B and the police report confirm there were medications remaining.
- The MAR charts only show three occasions in May 2019 that carers did not sign for the Nomad pack. This is despite there being at least two weeks’ worth of medication that carers cannot have given Mr C.
- There are only three missing signatures for Mirtazipine on the MAR charts for May 2019 and one missing signature for Omeprazole. Yet the evidence suggests there were at least seven to nine tablets of Omeprazole remaining and around eight Mirtazipine.
- On balance then, I can only find that carers did not give the medication when they should have done, but signed the MAR charts to say that they did. This is a very significant and serious failing in the care provided to Mr C. Not only did Mr C regularly not receive his prescribed medications for May 2019, but there may have been dishonesty on the part of carers about this.
- It is also a significant concern that the Council refused to investigate this allegation from a safeguarding perspective. Mrs B made this allegation soon after Mr C’s death. It is possibly the most serious allegation she raised and needed to be investigated. Yet the safeguarding report is silent. The Council then said it would not comment on the allegation because the police and CQC had already been involved. This was not a good reason for the Council not to investigate.
- The police were only concerned about whether non-administration of medication contributed to the cause of death. Just because it did not contribute to the cause of death did not mean it was not a serious safeguarding concern. I can see the CQC looked at medications generally as part of its normal inspection but there is nothing in its inspection report about the allegation of falsifying records. The Council’s safeguarding team was the best positioned body to investigate this and would have had more extensive evidence on which to make a finding if it had done so at the time. Not doing so was fault.
Incontinence and personal care
- I find fault in how Novus managed Mr C’s incontinence and in the Council’s assessment and care planning on this issue.
- Mrs B told the Council in November 2018 that Mr C was suffering from regular diarrhoea that had ruined most of his clothes. She said he was not getting enough support with this. There is no evidence the Council reviewed or considered reviewing Mr C’s care plan at this point. It just reiterated what carers were already doing. This is fault. Mrs B had told the Council the current level of support was not meeting Mr C’s incontinence needs. It needed to review whether Mr C needed more support, or simply a different type of support, for example with washing and cleaning his clothes after incontinence.
- The re-assessment in April 2019 said Mr C had the occasional accident. However, the previous assessment in 2017 had said he suffered regular diarrhoea and Mrs B had in 2018 raised concerns about its frequency and impact on his clothing. There is no detail or explanation in the assessment document as to why it considered the problem was now reduced, given the above. There is no evidence the Council considered Mrs B’s concerns when completing the assessment. There is no explanation for why the Council did not make any changes to the care plan in light of those concerns. I therefore find fault with the April 2019 assessment.
- The safeguarding report attributes the stains to one period of diarrhoea in May 2019. This appears to be consistent with the daily progress notes for May 2019, which make a record of the stains.
- That period of diarrhoea coincides with Mr C’s Loperamide running out. Loperamide was prescribed to help manage Mr C’s diarrhoea. It is therefore likely the lack of assessment around PRN Loperamide, which led to it being administered regularly and running out, contributed to Mr C’s diarrhoea in May 2019.
- The Council accepts it took double payments from Mr C. There was fault in the Council not picking up on this and rectifying the issue at an earlier point. However, the Council then resolved the issue so I am of the view this did not cause a significant injustice to Mr C.
Consideration or Remedy
- I have found fault in the following areas:
- Poor record keeping
- Not re-assessing Mr C every 12 months, or when there were significant changes to the way he received care, or when Mrs B raised concerns about his care package
- Fault in the way the April 2019 assessment considered incontinence care
- Not properly considering or recording its reasons for whether to conduct a formal mental capacity assessment around Mr C’s ability to decide when to take PRN medication
- Not ensuring carers had sufficient knowledge and guidance to support with Mr C’s PRN medication
- Carers signing for medication that was not given
- Not properly investigating the allegation about left over medication
- The Council has agreed to, within a month of this decision:
- Apologise to Mrs B for the fault identified in this statement
- Pay Mrs B £1,000 to recognise the distress caused
- There was fault in the care provided to Mr C, and in the Council’s assessments, oversight and investigations.
Investigator's decision on behalf of the Ombudsman