Summary: the Council delayed in reporting the findings of its safeguarding investigation to Mr X, and took too long to complete the investigation of his complaint. The Council has already offered a proportionate remedy to Mr X in respect of those delays. There is no evidence the safeguarding investigation itself was flawed. Any injustice to Mr X has already been remedied by the offer from the Council.

The complaint

1. Mr X (as I shall call him) complains the Council did not undertake a proper safeguarding investigation into his concerns about the treatment of his late father Mr A at a care home. He says the Council did not take seriously his concerns that an unregistered nurse was working at the home, that the care home failed to give his father proper nutrition and hydration, and that it did not respond appropriately to safeguarding concerns raised by paramedics.

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The Ombudsman’s role and powers

2. 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)
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

4. I considered all the information provided by Mr X and by the Council. Both the Council and Mr X had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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 himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

What happened

8. Mr A was discharged from hospital to the care home for palliative care on 12 December 2019. His care was funded by the NHS. Mr A, who had dementia, was treated as though he lacked capacity to make his own decisions about his care and treatment. No-one had power of attorney for his health and welfare. Mr X disputes that his father needed palliative care but his medical notes from his GP surgery show he was on the ‘end of life care register’.
9. The care home carried out a pre-admission assessment for Mr A in conjunction with the hospital. He was on a pureed diet with thickened fluids. The care plan drawn up by the home says, “not a big eater so will need to be encouraged and will need staff to assist with all his fluids and meals...will when being assisted clamp his mouth shut.” It says he should be placed in an upright position to eat to prevent choking and aspiration. His care plan says he should be offered “high calorie fortified foods and fluids and also homemade supplements to meet his needs along with fresubin [a nutritional supplement] as prescribed for him”. The stated aim of the care plan was to prevent further weight loss and promote weight gain.
10. On 14 December the care home updated Mr A’s risk assessment to include the risk of his being fed by his son (Mr X). The risk assessment says Mr X told care staff he intended to continue feeding his father as he always had done: he said he had done so while Mr A was in hospital and would not do anything to put him at risk of choking. The risk assessment noted staff should observe Mr X and document if he started to feed his father.
11. Mr X says by 14 December it was clear to him the care provider had decided to put in place a “dehydration and starvation plan” for his father. He says on the advice of the GP he bought Fresubins and gave them to his father. He says the GP told care home staff to administer the Fresubins but they ignored him. The Council’s notes record the GP did not visit Mr A until 17 December when he said Mr A was “quite poorly” and the care provider was doing everything it could.

The safeguarding alerts

12. On 16 December the care home raised a safeguarding alert with the Council. The care staff said Mr X was providing inappropriate food for his father and instructing staff to feed Mr A in a way which was deemed unsafe. They said Mr X instructed staff to position his father in a sequence that involved placing him in a seated position, then laying him down and to repeat this action every 10 minutes until Mr A woke up, in order to make him more responsive to eating. Staff declined to follow his instructions as they felt it was not in Mr A’s best interests. The Council started a safeguarding process and noted ‘it has become a concern that (Mr X) is not aware of the potential harm that could happen due to the way he is trying to support his father with some of his daily activities.’
13. Mr X says the GP recorded that Mr A was “not end of life” in his notes but the notes provided to us by the GP surgery do not say that.
14. The care home manager emailed the Council on 17 December to say she was at a loss to know what to do. She said Mr X insisted Mr A must eat and drink, but she said while care staff tried regularly to feed him they could only give him what he would take and then he clamped his mouth shut. She said Mr X had left their meeting shouting that his father would not stay at the home and that they were starving him. She said she had no intention of evicting Mr A.
15. On 17 December the Council received a safeguarding alert from Mr X. He had contacted the local police on 14 December saying the care home staff were not looking after his father properly. He had wanted to feed his father on 16 December when he visited but the care home staff had not allowed him to do so. The safeguarding documents note he said, ‘They are taking in plates of pureed food that he cannot eat ,they are using large spoons that will not go in his mouth and not using teaspoons…..they are making him [Mr X] leave and not letting him help at meal times.’
16. The care home manager advised the social worker that the GP had visited Mr A on 17 December and confirmed the care home was doing everything it could for Mr A.
17. Mr X says the care home prevented his father’s advocate from visiting him. The Council records show the care home manager told the advocate she was welcome to visit Mr A but she would not discuss his medical condition with her.
18. The social worker also spoke to Mr X. She asked why Mr A was in this care home as she had known him at a previous home. Mr X explained his father had been in two different care homes before he was admitted to hospital. He was discharged to another home but readmitted to hospital from there. Mr X said he had also raised concerns at the hospital that staff there were not giving sufficient food or fluids to his father.
19. The social worker spoke to Mr X and to the care home manager several times over the next few days. Mr X was adamant that the number of care homes his father had already been in had no bearing on whether he should move again if the care home staff were not feeding him properly.
20. On 18 December the social worker also told Mr X the GP had indicated he would provide anticipatory medicines for Mr A (as he was nearing the end of his life). Mr X disputes that she told him about the anticipatory medicines then. The social worker’s notes read “Phone call to (Mr X) (son). I explained the GP had visited yesterday and indicated the home was doing everything they could, in addition they are looking at providing anticipatory medication. (Mr X) stated “under no circumstances are they to give my father any medication” “They are trying to expedite my father’s death”. The record goes on to say Mr X threatened to notify the police and the GMC if his father was given any anticipatory medicines.
21. Mr X says at a meeting on 23 December the social worker prevented him moving Mr A to another care home to be with Mrs A. The Council’s records indicate the social worker expressed her concerns that it was not in Mr A’s best interests to have a further move. She also explained to Mr A’s GP that as the CCG funded Mr A’s care, it would require a best interest meeting to authorise the move.
22. The social worker notified the NHS Trust responsible for the funding of Mr A’s care about the situation. She said although the Council was not responsible for Mr A, she did not believe it was in his best interests to be moved again. She said it would be intrusive to try to carry out a Mental Capacity Act assessment of his capacity in his present condition and no-one had power of attorney for his health and welfare. The Trust manager agreed that in any event, any attempt to move Mr A would require a best interest meeting and authorization from the Trust.
23. The social worker contacted the GP, care home manager and Trust to arrange a best interest meeting in the New Year. However, the care home to which Mr X wanted to move his father no longer had available beds so no further action was taken to arrange the meeting.
24. The specialist nurse practitioner saw Mr A on 24 December and indicated he was on end-of-life care. She prescribed anticipatory medicines. Mr X says a nurse at the care home lied to the nurse practitioner about Mr A’s condition.
25. On 30 December the Council received a further safeguarding alert in respect of Mr A, this time from the ambulance crew who had attended on Mr X’s insistence. The care home manager said Mr X had told the paramedics Mr A was choking: he had put a camera in his father’s mouth and taken photos although care staff asked him to stop. Although the first responder found Mr A breathing normally, the ambulance crew would not allow care staff in the room when they saw Mr A and would not discuss the matter with them.
26. Mr A was admitted to hospital. Ward staff told the social worker he was ‘in his last 48 hours’ on 3 January. He died on 5 January.

Safeguarding enquiries after Mr A’s death

27. Mr X telephoned the Council on 6 January. He said he had very serious concerns about the care of his father at the care home and thought this had contributed to his death.
28. The social worker spoke to the police. She spoke to the CQC. She obtained the care records from the care home. She contacted the ambulance crew which had attended Mr A on his last day in the care home.
29. Two post-mortem examinations were carried out on Mr A. Dementia and cerebrovascular disease were deemed to be the cause of death. A toxicology report showed no anticipatory medicines were given. On 5 February the coroner indicated he had no concerns about Mr A’s death and he closed the case.
30. Mr X also made a referral to the Nursing and Midwifery Council as he said there was an unregistered nurse working at the care home.
31. The Council concluded there was no evidence of neglect. It concluded his ‘cause of death did not relate to issues around neglect but around him being end of life as diagnosed by his GP…. his ability to tolerate food and fluids was diminished and (the care home) staff had appropriately sought support for this with his GP and Speech and Language Services.’ The social worker contacted Mr X in September 2020 in the social worker’s absence to convey the findings to him. The safeguarding enquiry was closed in November 2020.

The complaint

32. In May 2020 Mr X contacted the Council to complain about delays in the safeguarding enquiries. The Council explained that an active safeguarding investigation took precedence over the investigation of a complaint. Mr X contacted the Council again about the delays in September 2020 and the Council agreed to share a copy of the safeguarding investigation with him. In the event this was not sent until 17 November.
33. The Council says Mr X obviously had outstanding concerns and it agreed to complete a Senior Management Review (SMR) of his complaints. The Council says its timescale for completion of a SMR is three months, but it did not send the final SMR report to him until 29 March 2021.
34. The SMR letter apologized to Mr X for the delay in contacting him. It also apologised as he had not been sent a final report with actions points, findings and recommendations. It apologised the Council had not updated him between February and September about the progress of the safeguarding investigation. It acknowledged the delay was a ‘significant failing’ on its part and explained what actions it had taken as a result to remind staff of the requirement to update referrers about the progress of a safeguarding investigation.
35. In response to Mr X’s complaint that the Council had not dealt directly with his father’s GP to obtain information the Council explained it was for the GP himself to determine who should liaise with the Council.
36. Mr X also complained the Council had not properly investigated concerns raised by the ambulance crew. The SMR letter explained the social worker had made the appropriate queries and liaised with the police but concluded there was no evidence of emergency intervention to prevent choking and no criminal activity was found by the police.
37. Mr X said his father had been ‘clinically malnourished, dehydrated and left to choke to death’ at the care home. The SMR letter reiterated no evidence had been found of poor care, and no concerns had been raised by the police and the coroner.
38. The SMR letter concluded the safeguarding investigation itself had taken place to the expected standard. It said however there was insufficient communication with Mr X about the process; the safeguarding report was poorly drafted and confusing, and there was insufficient management oversight of the process which had contributed to the delay.
39. The SMR letter explained that as a consequence of the failures identified in the administrative process of the safeguarding investigation, the Council had now implemented monthly safeguarding reports with an expectation that managers would discuss process weekly with investigating social workers; weekly safeguarding meetings to discuss safeguarding alerts; reminders for staff to update referrers regularly; and a training event would be arranged for managers across the service.
40. Finally the SMR letter apologised for the delay in concluding the complaint and offered £500 in recognition of the frustrations caused by the delay.
41. The Nursing and Midwifery Council (to whom Mr X reported there was an unregistered nurse working at the home) found his allegations unsubstantiated.
42. Mr X complained to the Ombudsman. He said the Council had failed to respond to a critical situation and remove his father from the care home.
43. The Council has acknowledged the delays and failings in its timescales. It says Mr X did not respond to its offer to remedy the frustrations those delays had caused.

Analysis

44. It is not the role of the Ombudsman to re-investigate the safeguarding allegations.
45. There is no evidence the Council failed to conduct a proper safeguarding investigation. The Council’s records show that all relevant information was obtained in order to reach a conclusion about the allegations.
46. There were acknowledged failings in the administrative process, however: staff failed to update Mr X on the progress of the investigation, final paperwork was not completed in accordance with the expected standards; there was a delay in sending the final report to Mr X even after staff had promised to do so.
47. In addition there were delays in the Council’s investigation of Mr X’s complaint.
48. As a result of those delays Mr X suffered considerable frustration and was unable to obtain a satisfactory conclusion to his concerns.
49. The Council has apologized and offered a sum of £500 which is proportionate to the injustice suffered. It has also instituted measures to prevent a recurrence of the sort of delays seen here.
50. It was not fault on the part of the social worker to express concern about the prospect of moving Mr A, who was on end-of-life care, to another home. It was due process on her part to arrange a best interest meeting so the decision could be appropriately authorized, as no one had power of attorney for Mr A.
51. The other concerns raised by Mr X – liaison by the GP with the care home, the report to the NMC, the prescription of anticipatory drugs – are not matters for the Ombudsman.

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Agreed action

52. Within one month of my final decision the Council will provide me with details of the training event arranged to encourage good practice in respect of safeguarding investigations;
53. Within one month of my final decision the Council will make a further offer to Mr X of the sum of £500 in recognition of the frustration caused by its delays.

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Final decision

54. I have completed this investigation as completion of the recommendations at paragraphs 46 and 47 will remedy any outstanding injustice caused by fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman