Newcastle upon Tyne City Council (20 007 862)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 01 Sep 2021

The Ombudsman's final decision:

Summary: We find fault in the Council’s investigation of the safeguarding concerns raised by Mrs Y. This is because the Council cannot demonstrate what evidence it considered when reaching its decision. The Council will apologise to Mrs Y and provide evidence to the Ombudsman of the remedial action undertaken by the care provider since the conclusion of the safeguarding investigation.

The complaint

  1. The complainant, whom I will call Mrs Y, complains about the care her late grandmother, Ms X, received and the Council’s subsequent safeguarding investigation into that care. Mrs Y says the Council’s safeguarding investigation was inadequate and did not include factual evidence regarding the care given.

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The Ombudsman’s role and powers

  1. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable (Local Government Act 1974, section 26A(2), as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  3. 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. During my investigation I discussed the complaint with Mrs Y and considered any information she provided.
  2. I made enquiries of the Council and considered its response.
  3. I consulted any relevant law, guidance and procedures about adult safeguarding. These are cited where necessary in this statement.
  4. I issued a draft decision to Mrs Y and the Council and invited their response. I considered any comments received before making a final decision.

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What I found

What should happen

  1. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect themself. The council must also decide whether it, or another person or agency, should take any action to protect the person from abuse or risk. (Care Act 2014, section 42)
  2. The Council’s procedures ‘Safeguarding Adults: a Brief Guide’ sets out the process to be followed when someone with care and support needs may be at risk of abuse or neglect:
    • Stage 1: Initial Enquiry. Upon receipt of a referral, the Council will consider how serious the alleged abuse is and establish any risks. The Council will speak to the adult at risk, or their representative.
    • Stage 2: Further information gathering. If the Council decides there may be significant harm, or the risk is unclear, it will gather more information to decide whether a formal investigation is needed.
    • Stage 3: Strategy and investigation. If the case proceeds, the Council will hold a meeting. The ‘best placed’ agency or professional will complete an investigation and provide a report with their findings.
    • Stage 4: Protection Plan and review. If people continue to have concerns about risk, the Council will hold a meeting to review the findings and agree upon a way to monitor and manage any identified risks.
  3. The Care Act Statutory Guidance makes clear that, “Good record keeping is a vital component of professional practice. Whenever a complaint or allegation of abuse is made, all agencies should keep clear and accurate records and each agency should identify procedures for incorporating, on receipt of a complaint or allegation, all relevant records into a file to record all action taken. When abuse or neglect is raised managers need to look for past incidents, concerns, risks and patterns. We know that in many situations, abuse and neglect arise from a range of incidents over a period of time. In the case of providers registered with CQC, records of these should be available to service commissioners and the CQC so they can take the necessary action.”
  4. This is echoed in the Council’s own ‘Multi-Agency Safeguarding Adults Procedures’ which say that detailed factual records must be kept, including the dates and circumstances of any conversations, interviews and records of all decisions made.

What happened

  1. At the time of the matters complained about, Ms X lived in a nursing home. Her primary health concerns were Chronic Obstructive Pulmonary Disease (COPD) and Alzheimer’s Disease.
  2. In April 2020, and during the national COVID-19 lockdown, Ms X’s son visited the home to deliver some snacks. He saw Ms X briefly through the window and relayed concerns to the staff that she looked unwell.
  3. The home contacted Ms X’s GP on the same day to seek advice following an apparent decline in her appetite and overall health. The GP advised the home to treat Ms X with antibiotics and steroids but to call 999 if her condition worsened.
  4. Later that day Ms X was admitted to hospital where she tested positive for COVID-19. Ms X received treatment in hospital for five days before transferring to end of life care. Ms X sadly died on 13 April 2020.
  5. Ms Y made a safeguarding referral to the Council on 29 April 2020 regarding concerns she had about the care home. Ms Y said the home had not communicated with families during the lockdown, and that Ms X was emaciated and dehydrated upon her admission to hospital. Ms Y relayed her concerns that Ms X had not eaten or drank properly for days before going into hospital.
  6. The Council decided to progress the referral to initial enquiries. It contacted the manager of the care home, who explained that Ms X’s family had been made aware of Ms X’s ill-health. The home felt it had followed procedure because it contacted the GP before Ms X’s son visited and expressed concern, but the GP decided it was not necessary to visit Ms X.
  7. The GP reported to the Council that it had no concerns about the care provided to Ms X.
  8. The Council’s enquiries found that Ms X’s weight was not taken upon admission to hospital, and her last recorded weight was in March 2020 when she weighed 64 kilograms. The enquiries also established that Ms X’s death certificate listed her cause of death as: heart attack, COPD, Alzheimer’s and COVID-19.
  9. The Council decided to hold a strategy meeting. Its records contain the following note on 11 May 2020: “spoke to [Ms Y] who raised the concern informed her about the meeting, [Ms Y] happy for this to go ahead and feedback to herself she will share this information with family”.
  10. Ms Y denies receiving an invitation to the strategy meeting.
  11. On 18 May 2020 the Council held the meeting. The manager of the care home attended. The minutes of the meeting show discussion about Ms X’s low appetite, and that she could sometimes be ‘off’ her food but hungry the next day. The home said it regularly contacted the GP to seek advice about Ms X’s health concerns, and it noted 14 telephone calls between January and April 2020. The home acknowledged Ms X had lost weight but felt this was not a concern because her BMI remained in the 'low risk’ category.
  12. The Council then arranged another meeting on 10 July 2020, which Ms Y attended. During the meeting, Ms Y relayed her concerns in a presentation in which she had collated and annotated records obtained from the home about Ms X’s care. The Council considered the concerns raised by Ms Y, and particularly the discrepancies she had found in paperwork she had obtained from the home. It concluded:

“that records and documents relating to [Ms X’s] care in [the home] do not support the assertion that appropriate care has been delivered or the safeguarding conclusion to the same effect”

The Council made the following recommendations:

    • The social worker to discuss the family’s ongoing concerns with CQC and the Council’s commissioning team.
    • The social worker to discuss any actions and recommendations with CQC and the Council’s commissioning team.
    • The care home manager to introduce a policy to ensure that amendments to food and fluid charts are checked and counter-signed by a senior member of staff at the time of amendment.
    • The care home manager will ensure compliance with existing policies regarding senior staff checking records at the end of each shift.
  1. The Council concluded its investigation in October 2020 because it was satisfied that the risk identified had been reduced.

Was there fault causing injustice in the Council’s actions?

  1. The purpose of our investigation is to consider how the Council conducted the safeguarding investigation into the allegations made by Ms Y. In the context of this investigation, is not our role to decide whether the home failed to safeguard Ms X but instead to establish if the Council followed the relevant law, procedures and guidance when investigating the actions of the home. Now this investigation has concluded, Ms Y is aware that she is entitled to pursue a complaint about the home if she wishes to complain about the care provided to Ms Y.
  2. Ms Y obtained contemporaneous records directly from the care home. She says these demonstrated that:
    • The home had retrospectively altered records relating to Ms X, particularly in the food and fluid charts.
    • The food and fluid charts contained conflicting information about Ms X’s intake, and records were often not signed off at the end of the shift.
    • The home said Ms X’s intake was good, but the information demonstrated that Ms X ate only around 50% of her meals in the ten days before her admission to hospital and ate nothing in the two days prior.
    • Ms X received only three supplement drinks in a 12-day period.
    • It was not possible to ascertain the extent of Ms X’s weight loss because the last time the home weighed her was on 2 March 2020. The hospital could not weigh Ms X upon admission because she was too unwell.
    • Ms X did not receive regular baths. Ms Y says the home should have contacted family members when Ms X refused to bathe so they could offer encouragement.
    • Personal care records contained conflicting information. The daily notes say the home offered four baths to Ms X in an 18-day period, but elsewhere the records say the home offered ten baths.
  3. We asked the Council to provide copies of the contemporaneous information it considered during the safeguarding investigation to establish whether it reached the same conclusions as Ms Y. It provided some food and fluid charts, but these did not cover the entire period in question. The Council also provided some personal care records and two communication records with the GP, one of which was entered in retrospect by the home almost one month after the date of original contact. In response to our enquiries, the Council explained:

“the social worker destroyed the documents sent to her from the home as they were not legible. The home have stated and apologised for the fact that the documentation was not as it should have been. We upheld the fact that we could not find recorded evidence that we had seen that evidence – as this was shredded”

  1. Both the Care Act and the Council’s own safeguarding procedures place an obligation on the Council to retain all records considered during a safeguarding investigation. In this case, the social worker took her own view about the legibility of the documents and decided to destroy them without retaining copies or making an entry to summarise what documents she had reviewed. This is fault.
  2. We must consider whether the fault caused injustice and, if so, what the Council should do to remedy that injustice. In my view, the fault identified creates some uncertainty about whether the Council considered all available evidence and was able to make a robust decision in this case.
  3. However, I am mindful that Ms Y was able to present the key documents in the strategy meeting on 10 July 2020. We know the Council did consider these documents and decided to make recommendations of the care home. This reduces some of the uncertainty caused by fault.
  4. Unfortunately, Ms X has since died so it is not possible to make any additional recommendations to further safeguard her. However, the law allows us to consider whether any other members of the public have suffered injustice from Council fault. In this case, that would be other residents of the care home.
  5. I am not persuaded that it would be worthwhile to recommend a fresh safeguarding investigation in this case. This is because the Council has already offered to investigate the concerns afresh, but Ms Y declined to participate. Furthermore, the Council has already made recommendations of the home which, if properly implemented, would help to safeguard other residents from failures in record keeping. The Council has also notified CQC of its findings. In my view, an additional safeguarding investigation would not achieve much more.
  6. Therefore, an appropriate remedy for any other service-users would be to ensure the Council has followed-up with the care provider to ensure the action plan is fully implemented.

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Agreed action

  1. Within four weeks of my final decision, the Council will:
    • apologise to Ms Y and her family for the avoidable time and trouble experienced in pursuing a complaint. This may have been avoided, had the Council retained records to evidence its decision-making in this case.
  2. Within eight weeks of my final decision, the Council will also:
    • provide evidence to the Ombudsman to show it has received confirmation from the care provider that all recommendations made during the safeguarding investigation have been fully implemented. The Council should obtain copies of any new policies implemented by the provider following the safeguarding investigation.

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Final decision

  1. We have completed our investigation with a finding of fault causing injustice. The agreed actions listed in the section above provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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