Kent County Council (19 007 211)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 28 Jan 2021

The Ombudsman's final decision:

Summary: Mrs A says the Council failed to act when she raised safeguarding concerns about her brother and failed to offer a suitable remedy for the failings. The Council dealt with the concerns Mrs A raised about provision of care to her brother properly but failed to progress a deprivation of liberty safeguards application. The Council also delayed inviting Mrs A’s parents to a safeguarding meeting after her brother’s death. Failure to progress the deprivation of liberty safeguards application has created some uncertainty about whether action would have been taken, has caused Mrs A and her parents frustration and led to Mrs A had to go to time and trouble to pursue her complaint. An apology, payment to Mrs A and her parents, along with the action the Council has already taken to improve communication between its safeguarding and deprivation of liberty safeguards teams is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mrs A, complained the Council failed to act on safeguarding concerns she raised about the care provided by a nursing home to her brother, whom I will refer to as Mr D and failed to offer an appropriate remedy for its failings. Mrs A says the safeguarding meeting following his death was controlled by the care provider and its lawyers and the family were not invited to the meeting until late in the day which prevented their attendance. Mrs A says the Council’s failings contributed to Mr D’s death and caused her family significant distress.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs A disagrees with it. He must consider whether there was fault in the way the decision was reached (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
  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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mrs A's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mrs A and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Chronology of the main events

  1. Mr D was admitted to hospital in October 2014. Assessments completed at the hospital showed some cognitive impairment linked to an earlier episode of cerebral meningitis. Mr D qualified for continuing healthcare funding and the NHS continuing healthcare team commissioned the nursing home placement for him. Mr D moved into the nursing home in January 2015.
  2. In June 2015 the nursing home submitted a deprivation of liberty safeguards (DOLS) application to the Council. At around the same time Mrs A contacted the Council to raise concerns about Mr D having been confined to his room since admission and remaining in bed. The Council referred Mrs A to the NHS continuing healthcare team as the commissioning service. The Council also passed Mrs A’s concerns onto the NHS continuing healthcare team. The NHS told the Council it had arranged a meeting at the nursing home with the family to discuss their concerns. The Council was not invited to that meeting. The NHS updated the Council following the meeting to say it had asked for Mr D to be reassessed for whether he had rehabilitation potential.
  3. Mrs A contacted the Council again at the beginning of July 2015 to report an assault on Mr D by another resident of the nursing home. The Council began a safeguarding investigation. The Council told Mrs A it would put the nursing home’s DOLS application on hold until the safeguarding investigation had completed. The Council completed the safeguarding investigation at the beginning of August. The Council identified no action required.
  4. Mrs A’s father contacted the Council in July 2015. Mrs A’s father said he did not consider the nursing home a suitable placement for his son. The Council told Mrs A’s father he would need to contact the NHS as the funding authority. When Mrs A’s father raised further concerns about the outcome of the meeting with the NHS the Council referred him to the NHS continuing healthcare team.
  5. Later in July 2015 Mrs A told the Council both her parents had been assaulted by the same person that assaulted Mr D. The Council told Mrs A as her parents were visitors to the nursing home they would need to either complain to the nursing home itself or to the police.
  6. In July 2015 Mrs A told the Council the nursing home had told her father he could only visit Mr D once a week for one hour. The Council referred Mrs A to the NHS as funding authority
  7. In August Mrs A again raised concerns Mr D remained in the same room and had no option to leave the room or go downstairs to meet other residents. The Council referred Mrs A to the NHS as the funding authority.
  8. On 26 November 2015 Mr D sadly died. Mrs A raised concerns the nursing home had failed to identify and respond to Mr D’s health issues and said that contributed to his death. The Council therefore began a safeguarding enquiry and alerted the police.
  9. In January 2016 an unannounced CQC visit took place and rated the nursing home as inadequate.
  10. The Council contacted Mrs A on 22 February 2016 to suggest a provisional date for a case conference to discuss the safeguarding issues for 13 April. Mrs A told the Council she could attend. The Council confirmed that in writing on 23 March. On 31 March Mrs A asked the Council to offer her invite to her parents instead. The Council did that on 4 April. The safeguarding case conference took place on 13 April. Mr D’s partner attended but Mrs A’s parents did not feel able to attend. The meeting did not identify any acts of omission at an individual or organisational level constituting abuse by neglect.
  11. Following a complaint the Council wrote to Mrs A on 29 December 2016 and offered a financial gesture of £300 each to Mrs A and her parents to recognise the shortfalls identified in the independent investigation. That related to the Council’s findings that completion of the DOLS assessment might have helped in providing a stronger framework for best interests decision making on some issues around Mr D’s care. The Council has since reviewed procedures for communication between safeguarding and the DOLS team. The Council has also issued a briefing paper to staff on the findings and has carried out training.
  12. A later inquest into Mr D’s death criticised the nursing home for the lack of basic checks when Mr D became ill on 25 November 2015 and decided neglect by the nursing home contributed to his death.

Care and support statutory guidance

  1. Section 4.2 of the guidance says safeguarding duties apply to an adult who:
    • has needs for care and support (whether or not the local authority is meeting any of those needs);
    • is experiencing, or at risk of, abuse or neglect;
    • 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.
  2. Section 14.9 of the guidance says safeguarding is not a substitute for:
    • providers’ responsibilities to provide safe and high quality care and support;
    • commissioners regularly assuring themselves of the safety and effectiveness of commissioned services;
    • the Care Quality Commission (CQC) ensuring that regulated providers comply with the fundamental standards of care or by taking enforcement action;
    • the core duties of the police to prevent and detect crime and protect life and property.

Deprivation of liberty guidance and law

  1. Article 5 of the Human Rights Act states that 'everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law'. The Deprivation of Liberty Safeguards (DOLS) is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm.
  2. A Supreme Court judgement in March 2014 made reference to the 'acid test' to see whether a person is being deprived of their liberty, which consisted of two questions:
    • Is the person subject to continuous supervision and control? and
    • Is the person free to leave?
  3. If someone is subject to that level of supervision, and is not free to leave, then it is almost certain that they are being deprived of their liberty. But even with the 'acid test' it can be difficult to be clear when the use of restrictions and restraint in someone's support crosses the line to depriving a person of their liberty. Each case must be considered on its own merits, but in addition to the two 'acid test' questions, if the following features are present, it would make sense to consider a deprivation of liberty application:
    • frequent use of sedation/medication to control behaviour
    • regular use of physical restraint to control behaviour
    • the person concerned objects verbally or physically to the restriction and/or restraint
    • objections from family and/or friends to the restriction or restraint
    • the person is confined to a particular part of the establishment in which they are being cared for
    • the placement is potentially unstable
    • possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor’s letter
    • the person is already subject to a deprivation of liberty authorisation which is about to expire.
  4. Directors of adult social services (ADASS) has produced a screening tool to help councils prioritise the allocation of requests to authorise a deprivation of liberty. That provides examples of situations which should be treated as high priority, medium priority and low priority. Included in the high priority is where there are restrictions on family/friend contact, where there are objections from family and friends and where a person is confined to a particular part of the establishment for a considerable period of time.

Analysis

  1. Mrs A says the Council failed to act when she raised concerns about the care provided to Mr D in a nursing home. Mrs A says Mr D was in the care home for 11 months during which he never left his room and was catheterised. Mrs A says she told the Council Mr D was in a dangerous environment and asked for help multiple times but received nothing. Mrs A says she made clear Mr D was receiving no rehabilitation or physiotherapy and the Council failed to act.
  2. As I said in paragraph 6, the Council was not involved in placing Mr D in the nursing home. Instead the NHS placed Mr D in the nursing home under continuing healthcare. In those circumstances I am satisfied when Mrs A raised concerns about Mr D’s treatment in the care home such as lack of physiotherapy and rehabilitation the Council was not wrong to refer her to the NHS. I understand from Mrs A’s point of view she considered the concerns she had raised to be safeguarding issues. I am satisfied the Council undertook safeguarding enquiries into the concerns Mrs A raised about Mr D being assaulted by another resident. However, the other concerns she raised were about the medical treatment he was receiving (or the lack of suitable medical treatment) and his placement in the nursing home. I am satisfied the Council dealt with those matters properly by referring them to the NHS as the commissioning authority and the organisation responsible for Mr D’s care. I therefore have no grounds to criticise it.
  3. I am concerned though with how the Council dealt with the DOLS application. I do not criticise the Council for putting the assessment of that application on hold awaiting the outcome of the safeguarding investigation about an assault by another resident. I am concerned though that once the safeguarding investigation had completed the Council took no action on the DOLS application. It appears the Council took no action because it did not consider Mr D’s case warranted high priority. The Council has provided a screening tool created by ADASS, which I refer to in paragraph 23. That makes clear placing restrictions on contact with family or friends falls within the high priority category. By the end of the safeguarding enquiry the Council knew the nursing home was restricting contact between Mr D and his parents to one hour per week. In those circumstances I would have expected the Council to revisit the priority given to the DOLS application. Failure to do that is fault. Even without further consideration of the priority given to the application though I am concerned the Council did nothing with it between the beginning of August 2015 when the safeguarding investigation completed and the end of November 2015 when Mr D died. That again is fault. I could not say though if the Council had prioritised consideration of the application the outcome for Mr D would have been different. I therefore consider Mrs A’s injustice is limited to her frustration and the uncertainty about what would have happened if the Council had completed its assessment of the application.
  4. Mrs A says the care provider and its lawyers dominated the safeguarding review meeting which took place in April 2016. Having considered the minutes of the meeting I have found no evidence to support Mrs A’s claim. The minutes of the meeting satisfy me all participants had an opportunity to contribute and did so, with the meeting controlled by the Chair. I therefore have no grounds to criticise the Council for the way in which the meeting was handled.
  5. I do, however, have some concerns about how the Council handled invitations to the April 2016 meeting. I have seen no evidence the Council invited Mrs A’s parents to the meeting until Mrs A told the Council she could not attend at the end of March 2016. I appreciate Mrs A had been representing her parents throughout the complaint process. However, the Council knew Mrs A lived outside the country and her parents were the ones that had visited Mr D. I therefore consider the Council should have invited the parents to the meeting. Failure to do that until the beginning of April is fault. I do not consider that made a significant difference in this case because it is clear the parents felt too distressed to attend, which I understand. Nevertheless, the Council should have invited them when it invited Mrs A in February 2016 or, in the alternative, should have made clear in February 2016 that it was for the family to decide who was the most appropriate person/persons to attend if there was a restriction on numbers.
  6. I have found no evidence to suggest though the Council told Mrs A family members could not speak at the meeting. It is clear from the minutes of the meeting itself that Mr D’s partner attended and contributed to the meeting. It is also clear the Council invited written questions from family members before the meeting took place so those issues could be addressed. My concern about the meeting in April 2016 therefore relates solely to the organisation of attendees.
  7. So, I have found fault as the Council failed to progress the DOLS application and failed to invite Mrs A’s parents to the April 2016 meeting until shortly before it took place. As I said, I could not say earlier consideration of DOLS application would have made a difference. Certainly I could not speculate about whether the Council would have acted or whether any action it took would have prevented Mr D’s death. However, I consider Mrs A and her parents are left with uncertainty about whether circumstances would have been different had the Council processed the application. They have also been caused frustration and have had to go to time and trouble to pursue the complaint. As remedy for that I recommended the Council apologise to Mrs A and her parents. I also recommended the Council pay Mrs A £500 and her parents £500 to reflect their frustration, uncertainty and the time and trouble Mrs A had to go to pursuing the complaint. I am satisfied the Council has already taken action to address the issues about communication between the safeguarding team and deprivation of liberty team. I recommended though the Council send a memo to those responsible for setting up safeguarding meetings following the death of a service user to remind them of the need to ensure all relevant family members have an opportunity to attend the meeting or, where numbers are limited, given the choice of who they consider suitable to attend. The Council has agreed to my recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mrs A and her parents for the failure to progress the DOLS application and for delaying inviting the parents to the April 2016 safeguarding meeting;
    • pay Mrs A £500 to reflect her uncertainty, distress and the time and trouble she had to go to pursuing the complaint; and
    • pay Mrs A’s parents £500 to reflect their uncertainty and distress;
    • send a memo to those responsible for setting up safeguarding meetings following the death of a service user to remind them of the need to ensure all relevant family members are invited or given an opportunity to select a representative from the family to attend.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs A and her parents an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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