Summary: Mr X complained about the actions of the Council when the care home his mother lived in raised a safeguarding alert. Mr X said this caused him distress and his mother’s health to deteriorate, eventually leading to her death. The Council carried out a satisfactory investigation which identified fault in its own actions and those of the care home. It made recommendations to prevent a recurrence of the issues complained about.

The complaint

1. Mr X complained about the actions of the Council when a safeguarding alert was raised concerning his mother, Mrs P, when she was resident at a nursing home. In particular he complained the Council:
1. did not carry out an appropriate investigation into the safeguarding incident. This included a failure to:
1. take proportionate action when the incident was initially raised;
2. visit Mrs P to discuss the incident. Instead the Council telephoned Mrs P whilst the relative of the carer involved in the incident was present;
3. properly apply the requirements of the Mental Capacity Act 2005 which led to family members being excluded from the safeguarding investigation; and
4. investigate why the nursing home did not report the safeguarding incident in a timely manner;
2. falsely stated Mrs P had agreed it could close the safeguarding incident, and omitted important information at a meeting held in March 2019; and
3. failed to take responsibility around its failure to follow its own procedures during the complaint process.
2. Mr X said the Council’s actions have caused him significant distress. He also believes the safeguarding incident, which resulted in his mother fracturing her leg, caused her health to decline which led to her early death.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I spoke to Mr X and considered his view of his complaint.
8. We made enquiries of the Council and considered the information it provided. This included copies of emails between Mr X and the Council, the complaints report, Mental Capacity Act assessments and the minutes of a meeting held in March 2019.
9. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

10. 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.
11. 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.
12. When assessing if someone has capacity, the assessment must only examine a person’s capacity to make a particular decision when it needs to be made. This is particularly relevant to people with fluctuating capacity.
13. The test of capacity has two stages:
• Does the person have an impairment of their brain or mind?
• Does that impairment mean that the person is unable to make a specific decision when they need to?

What happened

14. Mr X’s mother, Mrs P, used to be a resident at a nursing home.
15. On 12 January 2019, the nursing home telephoned Mr X and said Mrs P had been involved in a choking incident. The nursing home said Mrs P was now settled.
16. Between the 12 and 19 January, Mrs P told Mr X she had pain in her leg and the staff were aware of this. The doctor visited and prescribed painkillers.
17. On 19 January 2019, the nurse on duty at the nursing home raised a concern about Mrs P’s leg. Mrs P was admitted to hospital and diagnosed with a leg fracture. The hospital raised a safeguarding alert. This stated Mrs P had said she was regularly knocked unintentionally when staff at the nursing home hoisted her. She said the carer told her she would have to “grin and bear the pain” and she felt carers did not listen to her when she was in pain. It was felt the fracture may have occurred when the carer repositioned Mrs P after she choked.
18. The family was also present, and the hospital safeguarding form recorded they said they were concerned about increased number of agency staff, low staffing levels and staff not attending to Mrs P when she was in pain.
19. The form recorded Mrs P had mental capacity in relation to the safeguarding concern.
20. An officer from the Council’s Adult Safeguarding Team, Officer B, received the form from the hospital. Officer B telephoned the hospital safeguarding nurse and the nursing home manager.
21. The notes of the call with the nursing home manager include the following:
• the carer involved in the incident did not follow procedures as they did not complete an accident form. The manager would address this with the carer;
• relevant training such as first aid and manual handling for the staff members that were on duty when the safeguarding concern occurred would be arranged;
• the incident would be discussed at the team meeting;
• Mrs P’s care and risk plans would be updated and a nurse would oversee her care when she returned to the home;
• the choking incident had occurred because staff on duty failed to update Mrs P’s care plan following a speech and language assessment. This had now been updated; and
• the staff who attended Mrs P after the incident had not followed procedures whilst she was in pain. The manager would address this with the staff involved.
22. Officer B then telephoned Mrs P. Mrs P was unable to hold the phone because her hands shook, so the nursing home manager held it for her. Notes from the phone call stated “Care home manager… confirmed [Mrs P] has got the capacity to understand the safeguarding concerns and processes. This was also confirmed when spoken with [Mrs P] on phone and she was able to understand, retain and weigh up her decision… [Mrs P] wants the carers to listen more to her and she wants to be treated with dignity and respect. She wants her pain relief medication to be given to her on time and she wants the staff members alleged to attend relevant trainings”. The notes recorded Mrs P was happy for the Council to close the safeguarding concern.
23. Officer B concluded the safeguarding concern could be closed. The officer’s manager, Officer C, agreed with these conclusions. Officer C recorded this was because the nursing home had taken the appropriate action and Mrs P had capacity and her views had been ascertained and her outcomes achieved.
24. Mrs P was discharged back to the nursing home on 23 January 2019.
25. Mr X was unhappy the Council had closed the concern and telephoned Officer B. The notes record Mr X stated Mrs P was on a lot of medication and could become confused. He was unhappy Officer B had failed to visit Mrs P to discuss the case.
26. On 12 February, Mr X and other family members met Officers B’s and C’s team manager, Officer D. Mr X stated the Council had failed to follow the correct procedures when dealing with the safeguarding concern. In particular it:
• was at fault when Officer B spoke to Mrs P over the phone and not face to face;
• failed to correctly apply the Mental Capacity Act requirements in relation to whether Mrs P had capacity and thereby failed to ensure she was supported by a family member when the call took place; and
• was not in a position to close the safeguarding concern because without a full investigation it could not have all the facts.
27. Mr X also stated that the carer involved in the safeguarding incident was the care home manager’s daughter. Mr X said Mrs P therefore felt unable to speak freely on the telephone to Officer B because the care home manager was holding the phone. Officer D said the Council had previously been unaware of this but would discuss the matter with the care home manager.
28. Officer D stated that because of the family’s concerns, the safeguarding incident remained open and was kept at the safeguarding response stage.
29. It was agreed that because no resolution could be found at the meeting, Mr X should make a formal complaint to the Council.
30. Officer D carried out a mental capacity assessment with Mrs P on 12 March 2019. Mr X was present. This went into some detail about Mrs P’s recollection of the telephone call with Officer B when she was discharged in January, as well as Mr X’s dissatisfaction with the Council’s actions.
31. The assessment concluded Mrs P did not lack capacity.
32. Mr X complained to the Council on 14 March 2019. He raised similar issues to those discussed at the meeting in February.
33. The complaint was passed to an officer from a different part of the Council to investigate. The investigator held an initial meeting with Mr X on 1 April 2019. Following the investigation, a follow up meeting was held on 30 April. The investigator’s findings on Mr X’s concerns included a number of learning points for the adult safeguarding team and the nursing home. For the adult safeguarding team, these included issues around:
• determining if the adult wanted a family member or advocate present during conversations even if they had capacity;
• determining fluctuating capacity because of traumatic or disruptive events such as discharge from hospital; and
• more detailed preparatory work before carrying out discussions with the adult.
34. The investigator also detailed outcomes in relation to the actions of the nursing home, including conflicts of interest when family members work together and training and discussions with the staff involved in the safeguarding incidents.
35. The investigator’s report recorded Mr X was happy for the complaint investigation to be closed on the basis of the actions detailed in the report.
36. Mr X provided comments in May 2019 on the report which he asked to be incorporated into the final version. He said:

“…we do not accept that the failures and inadequacies found in this case are simply ‘learning curves’… Had this been one staff member whom has failed then we agree, yes, it could be deemed a ‘learning curve’ however in light of the fact there is a chain of command, this should have been a ‘fail safe’ at the outset of the enquiry… we must therefore question either Kirklees Safeguarding as an organisation for the failure to provided adequate training to its Senior Staff members/Managers or alternatively a failure of the actual Senior Staff Members/ Managers involved – the failure lies with one or the other”.

37. The Council responded to Mr X in August 2019. It said it had discussed the report with the investigator and officers and managers from the adult safeguarding team. The Council said the team “had already made changes to the way they operate based on detailed reflections of their work with your mother, especially in asking people assessed as having mental capacity if they would also like the involvement from their family or advocate… I cannot find any evidence for deliberate acts of mismanagement. I believe social workers and managers acted in good faith… later this year… [there will be] a review of the operational safeguarding system… and your points… will be an intrinsic part of this review”.
38. Mr X remained unhappy and complained to the Ombudsman.

My findings

Council did not carry out an appropriate investigation into the safeguarding incidents.

39. The Council found fault in the way the care home had dealt with the safeguarding incident. Staff had failed to complete an accident form, although they had sought the input of medical staff both immediately after the incident and then three days later. The Council stated it would not carry out a visit for every safeguarding referral, but a visit should be considered for more complex cases.
40. The Council concluded there was no evidence to indicate Mrs P lacked capacity when she decided on the telephone the safeguarding incident could be closed. However, despite this the Council decided it should have determined if Mrs P wanted a family member present when it contacted her to discuss the safeguarding incident.
41. I have considered Mr X’s views, the notes of the telephone call in January 2019, the MCA assessment on 12 March 2019 and the Council’s responses on this matter to Mr X. On the evidence I have seen, there was no fault in the way the Council decided Mrs P had capacity to close the safeguarding incident. I appreciate Mr X’s comments that the medication Mrs P was taking at the time could lead to confusion but that does not mean she was confused and lacked capacity when the telephone call took place.

Council falsely stated Mrs P had agreed the safeguarding incident could be closed and omitted important information in its record of a meeting held on 12 March 2019

42. The notes from the meeting on 12 March 2019 state Mrs P said she was happy for the Council to close safeguarding incident. Mr X was at that meeting and said Mrs P did not say that. He also says he provided the officer with important information about his mother’s fluctuating capacity which the officer failed to record in their report.
43. Mr X wrote to the investigator with these views and stated he wished them to include these in the report. The Council wrote to Mr X to explain it had considered these points but would not include them in the report.
44. I will not investigate this matter any further. Mistakes in people’s recollections may occur without this indicating they were deliberately falsifying records. Furthermore, what should or should not be noted as important in a meeting is a subjective matter. I acknowledge Mr X considered important information about Mrs P’s mental state was omitted from the notes. However, he provided the Council with that information at a later stage which it considered.
45. The key point in this matter was the phone call with Mrs P in January 2019 when she verbally agreed the incident could be closed. There is no evidence to show Mrs P did not say this. I note Mr X’s comments that Mrs P felt uncomfortable because the nursing home manager was holding the telephone, but at that stage the Council was unaware of the manager’s relationship with the carer. Mrs P was deemed to have capacity. The Council was entitled therefore, to take Mrs P at her word.
46. There was no fault in the way the Council investigated Mr X’s complaints or in the conclusions it came to.

Council failed to take responsibility or to admit it failed to follow its own procedures during the complaint process.

47. The Council appointed an officer unrelated to the events to carry out the investigation. The officer’s report was detailed and evidence-based. The officer identified a number of faults in the Council’s and care home’s actions and made recommendations to help resolve these. When Mr X said he was unhappy with the Council’s investigation, it met with him and said that although it would not reinvestigate, it would ensure the nursing home had carried out the recommendations from the investigation. The Council then provided Mr X with details of how it had satisfied itself the recommendations had been suitably addressed. These were satisfactory actions to take. There was no fault in the Council’s actions.

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Final decision

48. The Council has already admitted there was fault in some of its actions and taken appropriate steps to prevent a reoccurrence. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman