Summary: Mrs X complained about the way the Council dealt with safeguarding reports she made about her brother’s care. She also complained the Council did not recognise her role as her brother’s Deputy. We found there was no fault in the way safeguarding matters were investigated, but there was a failure to follow up on actions agreed to reduce risk. We did not find that the Council bullied or intimidated Mrs X or disregarded her role as Deputy.

The complaint

1. Mrs X complains the Council failed to properly deal with safeguarding complaints that she made about her brother’s care at a home funded by the NHS. Mrs X raised numerous safeguarding alerts stating that the home had not administered medication correctly and the care home had lost or not kept proper records. Mrs X complained the Council failed to recognise her role as her brother’s deputy for health and welfare, ignored her concerns, bullied her and did not include her in key decisions. She complains that Mr Y’s safety is affected by practices at the home and by the way the Council dealt with safeguarding matters she raised.

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What I have investigated

2. I have investigated the events Mrs X complained of back to 2019. I have not investigated earlier events. We can investigate how the Council considered the safeguarding reports Mrs X made, but we cannot consider a complaint about the care home in this instance. The reasons for this are set out in the last section of this statement.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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)

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How I considered this complaint

6. I spoke to Mrs X and considered the information she provided. I asked the Council for information and considered its response to the complaint.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Care Act 2014

8. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014).

What happened

9. Mrs X is a court appointed deputy for health and welfare and acts as her brother’s representative. Mrs X’s brother (Mr Y) does not have capacity. He is blind, profoundly deaf and non-verbal. Mr Y has lived in a care home since 2017. The care home is funded by the NHS Clinical Commissioning Group (CCG).
10. Mrs X made a safeguarding referral to the Council in June 2019. She reported the care home had failed to administer Mr Y’s medication correctly on four occasions. She also referred to previous reports she had made in 2018 of similar medication issues.
11. A social worker spoke to Mrs X and a team manager and the Council decided to make safeguarding enquiries. They visited Mr Y’s care home and then held a strategy discussion. They also obtained copies of relevant documents, such as correspondence from Mr Y’s GP and the discharge summaries from the hospital which documented medication. The Council decided to hold a strategy meeting and invited Mrs X to attend, with members of care home staff.

Safeguarding - 2018 Background

12. There had been a substantiated medication incident in 2018. A nurse stopped one of Mr Y’s ongoing medications in error believing the course was complete. Another 2018 report was partially substantiated. This was a report that the care home had not given prescribed constipation relief medication to Mr Y in accordance with a bowel chart. The Council found there was some confusion because Mrs X had ordinarily given Mr Y a different constipation remedy herself. At this time, she had not been able to source it, but care home staff believed they should not administer the prescribed medication as it was against Mrs X’s wishes. The Council found the GP and/or the Care Home should have discussed this with Mrs X.
13. Other 2018 reports were unsubstantiated. The first was that the care home was not giving Mr Y paracetamol as QDS (four times per day). This was unsubstantiated because the medication was prescribed as PRN (as required) and not QDS. The care home stated it used a pain scale to determine when to decide when to administer it. The care home stated they would ordinarily give paracetamol QDS at Mrs X’s request, but the prescription was PRN, so its actions were correct. The second involved Mr Y being given the wrong medication for two weeks. Two laxatives were wrongly prescribed by Mr Y’s GP. Mrs X was concerned that care home staff should have questioned the medication given a known condition affecting Mr Y’s bowel. The Council found it would have been difficult for staff to know something was wrong. The medication was prescribed. It noted Mr Y had suffered no ill effects.
14. Actions required in response to the 2018 reports included clear notes on the care homes records to tell Mrs X before changing Mr Y’s medication, and a new audit process of peer reviewing Medication Administered Charts (MARs). It was noted that the care home had asked the GP to clarify if it was essential for Mr Y to have paracetamol QDS. It was also noted that the Social Worker would consult the GP

2019/20 Safeguarding Reports

15. The issues Mrs X reported in June 2019 were that:
• In March 2019 paracetamol was not being administered QDS as it should be;
• She witnessed a nurse attempt to give Mr Y the wrong anti-biotic medication;
• All of Mr Y’s medication was missed on 8 May; and;
• Mr Y’s GP prescribed new medication without her being notified, as Y’s Deputy.
16. In respect of paracetamol, the Council’s enquiries found that at in March 2019, it was still prescribed as a PRN medication, so again this was not substantiated. It noted from 1 April 2019 this was changed by Y’s GP to a QDS prescription.
17. In respect of anti-biotics, the Council found that Y’s GP had prescribed a different anti-biotic on 5 April before Mrs X’s report. When Y was discharged from hospital on 12 April a list of Y’s medications did not include the new anti-biotic. But, the discharge notes stated there should be no change to pre-admission medication. So, the discharge notes were, to an extent, ambiguous. The Council found this had not been a medication error, because the hospital discharge had not overridden the GP’s prescription on 5 April. However, it partially substantiated the report. There was ambiguity that should have been resolved. The Council noted the care home took appropriate action when Mrs X highlighted this.
18. The Council found the missed evening medications on 8 May were caused by an error by care home staff. The medication was signed out but not dispensed. It was found the nurse in question was interrupted on the medication round and the medications had been left on the trolley, and not dispensed. This was substantiated.
19. The Council noted that the medications prescribed without her consent were the fault of the GP. This was substantiated. The Council stated, also that the care home failed to communicate the change to Mrs X.
20. The notes from the meeting with Mrs X set out actions that should be taken. These included a review of care by the CCG and that CCG held a meeting with Mrs X and Mr Y’s GP to discuss communication and the appropriateness of the care home’s use of the ABI scale/how Y might show any pain he has. The notes stated all in attendance agreed the risks had been effectively reduced and the safeguarding report would be closed.
21. Mrs X complained to the Council in May 2019. The Council responded to her complaint on 19 June 2019. Mrs X complained that a council officer had inappropriately commented on the frequency of Mrs X’s contact with Mr Y’s care home and suggested she waited for a monthly meeting to raise issues. The Council agreed that it was inappropriate for the Council to recommend she only contacted the home monthly. The Council agreed that the role of the Deputy was crucial and acknowledged Mrs X’s commitment to it. She also complained the safeguarding process was not appropriately managed because one of the nurses involved in a medication error had not been identified, so there was continuing risk. The Council stated it had originally intended to discuss the situation with the care home, however, as Mrs X had since raised further concerns, it was most appropriate to treat these as safeguarding issues and consider the matter further in that way.
22. In December 2019 a further safeguarding report was considered because Mr Y had received six doses too many of an anti-biotic medication he had been prescribed. His GP ordered blood tests and found Mr Y had been unaffected. The error was made because a ‘rescue pack’ of the same drugs was opened and administered to Mr Y after the course ended. The Council did not investigate further as it found Mr Y was not at risk of abuse or neglect. However, it noted there were recurring administration errors that should be followed up by the NHS to ensure the care home had implemented a new process to avoid a re-occurrence.
23. On 22 July 2020 Mrs X alerted the Council because the care home had lost some of Mr Y’s MAR sheets, so it could not confirm if an anti-biotic medication had been restarted for Mr Y as it should have been. As the medication was in liquid form, it could not be verified with a stock check. The care home told the Council the relevant MAR page may have dropped out of Mr Y’s file or been mis filed. The home stated it was moving to an electronic system which would reduce errors. Mr Y was well, all observations were normal, and his GP was not concerned. The care home stated there had also been an earlier incident where two doses had not been given.
24. The social worker spoke to the care home, Mrs X and to the GP. The Council decided against proceeding to safeguarding enquiries and noted the home would be putting in place an electronic system of MAR charts. The care home assured the social worker that until the electronic system was put in place, they would complete regular medication audits.
25. At the end of July Mrs X alerted the Council to a further incident where the care home had not given Mr Y two doses of anti-biotic medication. The safeguarding notes stated that given the accumulation of minor incidents, it met the threshold to consider further via safeguarding enquiries. It noted while Mr Y was on a lot of medication, there was nothing complex about it. It also noted that Mr Y was at high risk of developing UTIs. The Council also reported to the Care Quality Commission (CQC).
26. In August a social worker visited the care home and met Mrs X. There is also evidence that a social worker contacted the CCG to ask that Mr Y’s care was reviewed. The social worker stated this was the third medication error that had been reported to safeguarding since December.
27. When making further enquiries it was established the error occurred because the MAR chart was not clear. It did not say the missed drug was a prophylactic (or continuing) medication. When the current batch of medication was completed, staff stopped administering it. Mr Y was found to have had a UTI, but the GP was able to confirm the bug was resistant to the anti-biotic that had been missed, so this did not occur as a result of the error. The care home amended the MAR chart to make it clearer. They told the Council again that the home was going paperless and had a demonstration of an electronic system.
28. Although it made formal enquiries, the Council decided the outcome was unsubstantiated. This was because the error was on the MAR sheet, which it stated was provided by the GP.
29. In February 2021, the care home reported that Mr Y had a pressure sore to his ankle. This followed a hospital appointment where Mr Y was given splints to wear. The care home recognised when Mr Y returned, a care plan should have been set up to document how to manage the new splints. This was not done. There followed some disagreement about how best to deal with this because of splints Mr Y received. Both the care home and Mrs X consulted the relevant hospital department for advice. The Council determined that the matter should not be progressed. It noted Mrs X was happy with how things were being dealt with.

Recognising and treating Mrs X as Y’s Deputy

30. In October 2020 Mrs X expressed concern to social workers that the care home was locked down for two days and she had not been able to visit Mr Y. She stated that agreed measures to protect Mr Y were not being taken by the care home. She also set out concerns about how she had been treated by members of staff at the care home and by social workers. She stated:
• The Council’s safeguarding manager told her that she was not allowed to make formal complaints. Rather, she should contact the safeguarding team with concerns and they would decide what action should be taken. Mrs X found this restriction was unreasonable and she noted this was said in front of care home staff which was demeaning.
• Mrs X stated nurses and social workers bullied her. They made false accusations and seemed to Mrs X to be intimidating her to deter her from acting for Mr Y, in his best interests.
• She stated nurses and social workers seemed to fail to recognise her role as a Court of Protection Deputy.
31. Mrs X complained in November 2020. She also complained to the NHS regarding the actions of the care home.
32. The Council wrote to Mrs X on 22 July 2021, providing an update on the complaint. It stated her concerns were being investigated and it expected to provide a response by 31 August.
33. I understand the Council met with Mrs X on 10 August. The Council provided a response to her complaint on 7 October 2021. It apologised for the delay in the Council’s response.
34. In response to the complaint, the Council noted the findings of the safeguarding reports Mrs X made. The letter also noted Mrs X’s concern that she was being ignored, as Mr Y’s deputy. The Council noted that social workers had met with Mrs X, and Section 42 enquiries had been undertaken about several of the reports she made. It noted action had been taken in response to a number of the safeguarding reports. The Council considered the proper process had been followed to address the safeguarding reports.
35. The Council stated a professionals meeting was held in early 2019 to follow up a visit to Mr Y in January. It was acknowledged that Mrs X could not attend, but it was important that it went ahead. The Council noted there was some discussion at the meeting about issues relating to Mrs X. The issues included the amount of information on the walls for staff to read in Mr Y’s room. It was considered it may be better put into Mr Y’s care plan. There was a question about Mrs X administering a constipation remedy to Mr Y herself, as medications should generally be administered by care staff. A third point suggested that care home staff could not ring her on a daily basis and a social worker suggested Mrs X staff waited for a monthly meeting to raise issues, unless they were an emergency or urgent issues that needed prompt attention. Mrs X had was unhappy that because council officers stated Mrs X expected daily calls from the care home (which she did not), someone made a complaint to the Office of the Public Guardian (OPG) about her. The Council commented there was no record of any council officer approaching the OPG to complain about Mrs X. The Council referred back to its 2019 complaint response regarding the third point in which it agreed it was inappropriate to suggest Mrs X waited to raise issues. The Council stated there were no references in safeguarding paperwork or file notes to suggest any evidence of bullying or false allegations being made against Mrs X.
36. The Council explained that the safeguarding manager she complained about no longer worked for the Council. However, it had referred the complaint to him. He did not recall the discussion with Mrs X, but he recognised and accepted her role as Deputy. The Council stated as this, and other elements of this part of the complaint were not documented discussions, it was difficult to resolve this.
37. The Council ran through number of preventative actions taken as a result of the safeguarding reports Mrs X had made.

Was there fault by the Council

38. When we investigate a complaint, we compare the way a council has acted against its legal duties, relevant policy and guidance. We are generally considering the actions taken and the process that has been followed. We cannot question the professional judgement of officers on specific decisions they have taken if there has been no fault in the way those decisions have been made.
39. Given Mr Y’s disabilities it is entirely appropriate for Mrs X to raise concerns on his behalf in her role as his deputy. There have been numerous substantiated errors relating to medication. However, our investigation concerns the Council’s actions rather than the actions of the care home.
40. I found there is evidence that the Council acted upon Mrs X’s safeguarding concerns appropriately. It considered each case and decided what level of response was warranted. It has made formal section 42 enquiries where it deemed this appropriate. The Council has spoken with Mrs X, Mr Y’s GP and care home staff and obtained documentary evidence as part of considering the reports. These are the typically actions that councils can and should take when considering safeguarding issues. The Council has also considered how each incident affected Mr Y. Overall, I found no fault in the way the Council considered and investigated Mrs X’s reports.
41. Mrs X’s safeguarding reports indicated there were numerous administrative and other errors in the way the care home dealt with medication. The Council has alerted CQC and there is evidence that a range of actions have been agreed in response to various alerts. However, some of the agreed actions have not been taken and in others the outcomes are not clear. For example,
• there is evidence the care home stated in July 2020 that an electronic medication system was to be installed to help prevent errors occurring. This was re-stated later in 2020 when a separate incident occurred. The Council’s records show this was completed action on 2 September 2020. However, the care home confirmed to us that as of 2022 no electronic system has been installed at the home. So, there has been a failure to take action that was agreed to reduce risks. I would expect the Council to follow up on actions agreed as part of safeguarding enquiries to ensure these actions have been taken.
• In 2018, there was an action for the care home to contact Mr Y’s GP to verify whether paracetamol should be given QDS (four times per day) or only PRN (as required). This issue was raised again in 2019. The Council noted the prescription was PRN and not QDS but no mention was made of the GP advice that should have been sought when the matter was raised previously. It is unclear if this action was taken.
42. I found there appears to have been no follow up to ensure the required actions were taken to limit risks identified. The failure to follow up was fault.
43. I acknowledge there have been differences of opinion about some issues about Mr Y’s care. For example, how best to display or get across information that nurses need to be aware of. I can understand Mrs X is concerned at times because there have been a number of substantiated reports involving the care home. However, it was not fault for the council to raise such issues with Mrs X.
44. I recognise that the Council agreed with Mrs X that an officer should not have suggested that she only raised issues monthly. But, some of the incidents subject to complaint have been verbal conversations and in those cases, I cannot prefer one person’s recollection of events over another’s. Overall, I have not found there was evidence Mrs X has been bullied or intimidated by council officers or that they did not respect her position as a Deputy. We cannot comment on and we have not investigated the actions of NHS or care home staff.
45. 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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Agreed action

46. Within four weeks of my final decision the Council should review the actions agreed to deal with safeguarding incidents at Mr Y’s care home. It should determine what, if any, actions need to be taken and by what date to resolve any outstanding action points.

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Final decision

47. There was fault by the Council. As the Council agreed to take action to remedy the issues we identified, I have now completed my investigation and closed my file.

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Parts of the complaint that I did not investigate

48. The Ombudsman generally expects complaints to be brought to us within a year of the issues that occurred. I am not investigating the events in 2018. We considered the outcomes of incidents in 2018 as background to the more recent complaints. We did not investigate from 2018 because a complaint could have been brought to us sooner about these events. I have exercised discretion to consider events back to 2019.
49. The care home looking after Mr Y is funded by the NHS. As a result, Mrs X had to make a complaint to the Parliamentary and Healthcare Ombudsman (PHSO) about the actions of the care home.

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Investigator's decision on behalf of the Ombudsman