East Sussex County Council (20 012 515)
The Ombudsman's final decision:
Summary: Mr C complained about the way the Council responded to the safeguarding concerns he raised about his son’s care, at the end of 2018. We found some fault with the way the safeguarding enquiry was handled and the way in which the Council responded to Mr C’s concerns about that. The Council has agreed to apologise to Mr C and pay him a financial remedy for the distress he experienced. It will also share the lessons learned with relevant staff.
The complaint
- The complainant, whom I shall call Mr C, complained to us on behalf of himself and his son, whom I shall call Mr X. Mr C complained about the Council’s safeguarding enquiry into his son’s care. He complains that:
- It was not independent enough
- Did not consider all the relevant / important issues
- Did not reach the right conclusions
- And did not provide him with an opportunity to comment on the findings, before it was closed.
The Ombudsman’s role and powers
- 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)
- 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)
- If we are satisfied with a council’s actions or proposed actions, we can complete our enquiry and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.
What I found
Relevant legislation and guidance
- 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 themself. 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)
- This means, the council has a duty to make enquiries, or cause others to do so, to establish whether an action should be taken to prevent or stop abuse or neglect. The Council should co-operate with each of its relevant partners in order to best protect the adult.
- Statutory Care Act Guidance says that: What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate. If they lack capacity it should be in their best interests if they are not able to make the decision, and be proportionate to the level of concern.
What happened
- Mr X has a number of complex health conditions. His father, Mr C, is his court appointed deputy for health and welfare. This meant that he is responsible for making decisions about his son’s medical treatment and how he is looked after, because his son does not have capacity to make these decisions himself.
- Mr X moved into the nursing home in October 2017, where he remained until moving to another home in September 2019. The local Clinical Commissioning Group (CCG) had assessed that Mr X had a primary health need and he was therefore eligible for Continuing Healthcare. This meant the CCG was responsible for commissioning his care in the nursing home and ensuring it met his needs.
- The Council says Mr C had developed a care plan that described how he felt his son should be supported and cared for in the nursing home. However, the Council says the CCG concluded that Mr C’s care plan was not clinically safe or appropriate and, as such, the nursing home did not follow this. Mr C said, as part of the concern he raised, that he was not aware of this and that, if the CCG wanted to oppose his treatment plan, it should have brought this to the attention of the CoP. This specific issue is an issue Mr C will need to take up further with the CCG and/or the Court of Protection.
- The Council said it understands that, as the Trust did not follow Mr C’s plan, Mr C had concerns that his son was not receiving appropriate care and therefore raised the safeguarding concerns. Mr C was concerned about a lack of structured activity for his son and the way staff was managing and responding to this (in terms of administering medication). Mr C said:
- The lack of activities for his son resulted in outbursts of frustration, which could lead to his son vomiting, having seizures and getting chest infections.
- As there had been an increase in these incidents, staff were giving his son Clobazam more often to try and manage these episodes.
- He said his son should have received more structured activities, especially within the community.
- Furthermore, he said it is important staff have the skills to be able to use techniques to prevent the situation from escalating to the point where medication is needed.
- In addition, once medication would be needed, it was important to ensure there was a clear protocol for staff that explained what medication should be given, at which frequency and in which quantities.
The complaint about the alleged lack of immediate actions by the Safeguarding Enquiry
- Mr C complained to us that the Safeguarding Enquiry (SE) should have put some immediate measures in place to immediately safeguard his son, while the enquiry took place. Mr C said he mentioned several significant health risks when he raised his concerns with the Council. In relation to those, he said:
- There was no emergency protocol to deal with these that set out how medication should be administered during an escalation. Mr C said the enquiry failed to ensure this was immediately looked into and addressed by an independent medical expert to prevent further immediate risks to his son’s health.
- There was not enough staff who were trained in recognising signs and carrying out early intervention to avoid escalation, including suction. This is what his son needed and had not received sufficiently until then, leaving him at risk (in the interim).
- The Council started its safeguarding enquiry in December 2018, after it received Mr C’s concerns about the possible failings in his son’s care. The Council says:
- It first has to determine if it has to take immediate actions to address imminent risks to an individual. It has a duty to undertake enquiries without delay and in a timely manner, taking into account the individual needs of the adult and their desired outcomes.
- Taking into account that the CCG was responsible for Mr X’s care needs, and the issues complained about were health related, the Council needs to ask the CCG to (immediately) assess if there are immediate risks and produce a safeguarding plan for Mr X to mitigate any ongoing risk of harm or abuse.
- It immediately created a safeguarding plan that identified that Mr X’s care needs were to be reviewed by 21 December 2018.
- A manager from the CCG reported on 24 December that she visited the care provider and reviewed/analysed its records. The Council’s record states she had identified clinical needs but no immediate risks.
- The reviewed safeguarding plan was sent to Mr C in early January 2019
- Feedback from further visits to the care provider one week later, reported that the NHS/CHC did not have any concerns about immediate risks to Mr X.
- It was agreed by all concerned at the safeguarding enquiry planning meeting in mid-January 2019, that Mr X was safe.
- Furthermore, there was no need for the concern about the protocol to be looked into by an independent medical expert. It consulted with Mr X’s GP in relation to this. Mr X’s GP was responsible for making clinical decisions relating to his care and treatment. The GP would be the most appropriate clinician to contact as they have access to the full medical notes and are in a position to contact/liaise with all consultants involved in Mr X’s medical care. The GP had not been made aware at the time of advice from a hospital consultant to administer Paraldehyde. There was nothing at the time to indicate at the time that the GP’s medical practice should be investigated. Mr C only expressed concerns about the GP later on.
Analysis:
- It is the role of the Council, as part of the safeguarding process, to ensure there is a protection plan in place immediately, so that any immediate risks are managed (in the interim). In his safeguarding alert, Mr C raised several health risks to his son that he described as significant. The Council is dependent on health colleagues to advise on such matters.
- The Council immediately liaised with the NHS/CCG to review Mr C’s concerns and identify if there were any immediate risks to Mr X that needed to be addressed immediately. Health colleagues reported that, while there were issues that needed to be addressed, Mr X’s safety was not at (immediate) risk.
- The Council kept this under active review throughout and regularly checked with those concerned whether they had any concerns about Mr X’s safety. For instance, it discussed next steps with Mr C during January 2019, which included steps to put an up-to-date protocol in place. It also checked with all stakeholders at the end of each monthly safeguarding planning meeting if participants felt that Mr C’s safety was at risk. The records do not indicate Mr C was unhappy with the Council’s planned approach at the time. As such, I found there was no fault with the way the Council looked into whether there were any immediate risks.
- Mr C also complained that he believed those involved in assessing these risks and looking into these concerns were not sufficiently independent. I will deal with that later on in this decision statement.
The complaint about the GP not prescribing Paraldehyde
- Mr C said that one of his concerns had been the GP’s decision to ignore the Epilepsy protocol written down by a Neurology Consultant in a letter in 2018. That protocol clearly said that: if Clobazam could not control his son’s seizures, staff should administer Paraldehyde before calling an ambulance. Mr C said the GP told staff not to administer this and call an ambulance instead. However, that approach could result in delays of several hours, putting his son at risk.
- The GP had not been given a copy of the consultant’s letter. It was therefore agreed in January 2019 that Mr C would share a copy of the letter with the GP so the GP would ensure an updated protocol would be in place. In the interim, the GP provided an interim protocol for staff to follow. Mr C had asked to include Paraldehyde in this, but the GP did not include this. It appears, from records I have reviewed, that the GP was not familiar with the use of Paraldehyde and first wanted to obtain further information / clarification around this. The Council said that temporary measures put in place by the GP, following a recommendation form a Neurologist to increase his medication, had subsequently reduced Mr X’s seizures.
- Mr C said the GP only agreed to include Paraldehyde after Mr C involved lawyers in July 2019.
- The safeguarding enquiry report and conclusion meeting in July 2019 said that the admission process from the nursing home should have identified in October 2017 that Mr X’s protocol was out of date (it was from 2008) and rectified this immediately.
- The Council told me that Mr C said that he did not want his son to be given Paraldehyde and instead wanted an ambulance called. However, I found that Mr C had already pointed out in an email on 10 April 2019 that this was incorrect as Mr C had never said that.
Analysis
- It took an unreasonable amount of time (seven months) to clarify that Paraldehyde should be given, and therefore should be put on the MAR sheet, when Clobazam was not working. While this did not result in an actual injustice occurring to Mr X during that time (as Mr X did not need this administered during this time) it did result in distress to Mr C.
- Mr C was unhappy about the GP’s decision that, in the interim, he would not prescribe Paraldehyde and has made a complaint about this to the CCG. If he is unhappy with the response he receives from the CCG, he can refer his complaint to the Health Service Ombudsman if needed.
The way the issue of increased Clobazam was investigated:
- Mr C said that, when he raised his safeguarding concern, he was concerned about a significant increase in the use of Clobazam. He said his son had received 64 doses of Clobazam within a period of three months. Mr C said this was an extraordinary amount. Mr C complained that the SE:
- Failed to ask an independent medical expert to assess if the increased use of Clobazam had indeed been appropriate, as concluded by the SE.
- Failed to provide independent evidence to support the SE’s conclusion that: the increase had been evidenced as being in line with his son's needs.
- According to Mr C, the SE should have concluded that the frequent use was not appropriate and a sign that not all staff supporting his son 1:1 were able to carry out the steps early on in an episode needed to avoid the use of Clobazam later on.
- Furthermore, he said the SE should have said the home failed to recognise and investigate this increase in Clobazam itself. Instead, it was he who recognised this after reviewing the home's records.
- The Council said that the increased use of Clobazam was examined by CCG health professionals during the safeguarding enquiry. In these cases, it would ask those working with the adult, and who therefore know him best, to complete those enquiries. It was therefore appropriate for a Learning Disabilities Specialist Nurse to review this on behalf of the CCG. The nurse concluded there were no clinical concerns about the use of Clobazam and the enquiry concluded that staff used Clobazam as prescribed. It said the increase in use had been due to a reported increase in Mr X’s agitation.
Analysis
- The Council had to rely on the expertise of the CCG/Health to investigate certain aspects of Mr C’s concerns. As such, it had to rely on the CCG for appointing suitable professionals to investigate these. The Council acted appropriately with regards to this.
- In effect, Mr C is unhappy with:
- The fact the health professional was not sufficiently independent, which is something I will look at later in this statement.
- The quality of the judgement of the health professional involved in looking at this aspect of his complaint. As such, the appropriate step would be to make a complaint about that through the NHS complaints procedure.
- I do however agree with Mr C’s view that the nursing home should itself have realised there was a significant increase in the use of Clobazam and should have taken steps to review this, before he identified and raised this as a concern
- The enquiry identified there was a need for a clear protocol that identified what type of incident was occurring (seizure, frustration, in pain) and how to avoid things escalating. This was provided by a hospital consultant in June 2019.
Mr C’s allegation that there had been more than six seizures
- Mr C complained that the SE upheld the statement that there had only been six seizures since his son had been a resident at the home. However, this was not correct. Mr C said:
- The SE concluded there had only been six (recorded) seizures. However, the SE’s review of records should have focussed on ‘vital signs recording’. This would have provided clear evidence of many more seizures. Mr C said that, of a sample of 40 recordings, on 28 occasions his son’s oxygen saturations were 94% or below with the lowest recorded 88%. It is most likely that these events were unrecorded seizures, and which were therefore not treated properly as per the relevant protocol.
- Furthermore, one of his son’s care workers had told a Neurologist during a consultation, that the frequency of his son’s seizures had increased over the last 6 months from 2 to 3 a month to 3 to 4 a week. However, the SE did not look into this.
- The Council has told me it would have been up to the CCG to consider whether reviewing vital signs records would be beneficial.
- A letter from the hospital’s Neurology Department to Mr X’s GP, dated 1 January 2019, said that: “the carer reported that over the last 6 months his seizures frequency has significantly increased. He used to have 2-3 a month. Now he can have 3-4 a week”.
- A learning disability nurse from the CCG looked into the frequency of seizure and concluded in March 2019: ''The records do not indicate an increase in the frequency of seizures, they continue to be infrequent and are documented appropriately”.
Analysis
- The Council had to rely on the expertise of the CCG/Health to investigate certain aspects of Mr C’s concerns. As such, it had to rely on the CCG for appointing suitable professionals to investigate these. The Council acted appropriately with regards to this.
- In effect, Mr C is unhappy with:
- The fact the health professional was not sufficiently independent, which is something I will look at later in this statement.
- Furthermore, he is also unhappy with the quality of the judgement of the health professional involved in looking at this aspect of his complaint. As such, the appropriate step would be to make a complaint about that through the NHS complaints procedure.
- I do however agree that the Council failed to look into each of the specific concern Mr C raised with regards to the way the SE had been looking into this:
- While reviewing vital sign records may be an activity that should be done by the CCG, I did not see evidence the Council (who was responsible for the overall SE) discussed Mr C’s comments with the CCG so as to determine whether this would be beneficial in this case and able to identify more incidents. This was fault.
- Looked into the statement of the care worker. For instance, it did not try to identify the staff member and interview him. This was fault.
Mr C’s complaint with regards to meaningful activities
- Mr C said the SE agreed there was a lack of support for his son to socialise, meaningful activities and access the community, which put his son at risk, as this resulted in increased agitation resulting in increased risk of seizures etc). Mr C complained that the SE:
- Failed to clearly state in the final report / conclusions, that the CCG had failed to meet the requirements of the National Framework by not producing a personalised care plan that clearly showed how those needs would be met and thereby how this risk would be managed.
- Should have clearly recommended that the CCG should put such a fully costed care plan in place, that would set out:
- what his son’s emotional needs were, as well as his needs to develop skills and for socialising and accessing the community, and
- how those needs should be met, setting out the support he should receive, including how frequently he should access an age-appropriate day centre, physiotherapy, hydrotherapy, and eye gaze technology.
- Mr C said that, while the exact contents of this plan would not be in the influence of the SE, it was key for the enquiry to state this had not been in place and should have been in place, and that the CCG should therefore put such a detailed care plan in place to manage this risk. He said this would also have enabled the Council to monitor the implementation of this key recommendation.
- In response, the Council said that in these circumstances, the role of the Council’s Adult Social Care Team was to request the CCG to review Mr X’s care plans, with additional information from the various professionals supporting him, to ensure they were fit for purpose. The safeguarding action plan from April 2019 said the CCG should meet with the care provider to discuss a bespoke personalised activity plan.
- However, the Council also told me it accepts that the actions could have been more specific, to instruct the improvements required to Mr X’s care plan. The CCG had ultimate responsibility for doing this with the care provider. Concerns relating to the implementation of the National Framework for NHS Continuing Healthcare and NHS-funded nursing care should be addressed to NHS England.
Analysis
- The Council has acknowledged that the actions with regards to this should have been more specific.
Mr C’s complaint about record keeping
- Mr C said there were instances where there was no evidence in the records that staff had done something (for instance a Physiotherapy session). However, the Council’s conclusion was that this could be ‘because staff had done the activity but failed to record it’. Mr C says this was wrongfully lenient. He said the investigation should have concluded that staff failed to do the activity.
- Furthermore, Mr C also complained that, even though the SE concluded there had been poor recordkeeping, the SE plan failed to include a specific action to ensure the home would start to record all incidents when suction is being used, in addition to all other interventions related to his son.
- In response, the Council said that:
- A review of records during the SE confirmed that daily notes, overnight logs and suction forms were inaccurate and of poor quality. However, it was also noted that, during the timeframe of the enquiry, regular reviews showed great improvement in the quality of recording. For instance, a review of records in February 2019 by the Enquiry Officer confirmed greater detail in daily logs, as compared to records of August and November 2019.
- There was a specific action within the safeguarding plan to record all incidents of aspiration and vomiting with regards to frequency. The minutes of the safeguarding conclusion meeting do include the following: “advised that it (recording) was a work in progress and that the care provider had been working on the quality and detail of all documentation and had implemented templates and training to assist. All work would be overseen by nurses who would complete regular audits of the documentation’.
- However, it is recognised that a robust action should have been included in the safeguarding plan regarding the improvement of record keeping at the service and we apologise that this did not happen. The action plan from April 2019 states: to monitor and check if all log notes are being written up accurately.
Analysis
- I agree with Mr C’s view that the SE should have concluded that, in the absence of any evidence that an action took place, the action did not take place on the balance of probabilities. This is fault.
- The Council has acknowledged that it should have included a clear action with regards to improving recordkeeping.
Mr C’s complaint about the enquiry into his son’s diet and weight loss
- Mr C raised a concern about weight loss several months after the SE had started. He said his son’s weight loss of 4 kg (10% of his body weight) since October 2018 was of particular concern.
- Mr C complained the SE failed to properly investigate the concerns around weight loss. He said:
- The SE failed to arrange an independent medical expert to assess the weight charts and come to an independent expert opinion as to: whether his son's weight loss, during periods when he was NOT ill, should have been an issue of concern, which he believes it was.
- Furthermore, the dietician he commissioned explained that his son’s weight loss was concerning, but this was not reflected in the SE; it was ignored by the Council.
- Mr C paid a dietician to look into his concerns. He said the dietician was familiar with his son and had known him for many years. The dietician observed how care staff supported Mr C and her report said that:
- The carer said what foods Mr X liked. He said he liked sweet foods so the home would add peas, carrots and sweet potatoes. The carer also advised thickener would be added when needed to achieve the correct consistency.
- Mr X’s weight increased from 32.9kgs in October 2017 to 34 kgs in February 2018. After his surgery his weight dropped and then recovered a bit. His weight has fallen overall to 29.9 kgs by February 2019. The weight loss since September 2018 is of particular concern “as Mr X has been well throughout this period”.
- The weight reports I have seen show that Mr X’s weight was more or less stable. However, his weight decreased from 34kg in February 2018 to 32.2kg in April 2018 and 2.2kg during January 2019.
- In response to Mr C’s concerns, various professionals visited and reviewed Mr X’s support with nutrition. The Speech and Language Therapist team (SALT) confirmed in April 2019 that it has been a long-term challenge to stabilise Mr X’s weight, because he easily loses weight.
- The Community Dietician confirmed in May 2019 that she did not feel the weight loss had been of a significant concern. However, she said she would review textures, calories and diet content, alongside the SALT team and Mr C.
- The Council said that:
- The Council’s safeguarding policy does not stipulate that an independent expert has to be consulted.
- It responded to the concerns and health professionals concluded that Mr X’s weight loss was not significant nor outside of his historical pattern of weight loss when unwell.
- Additionally, a joint assessment was completed with the Community Dietician, who gave verbal feedback on the outcome to the lead enquiry officer. The record states: ‘Believes weight is relatively stable; not unduly concerned. Regarding calorie intake, she can provide recommendations for desserts but wishes to discuss issues raised during assessment with SALT in first instance’.
- Records indicate Mr X’s weight dropped from 32.1kg on 7 January 2019 to 29.9kg on 9 February 2019; a loss of 2.2kg. This was during a period when Mr X had an infection, experienced a seizure and had an A & E admission. Therefore, the loss is likely attributed to poor health episodes.
- The private dietician's report suggested Mr X had not been unwell during January 2019, which shows she was unaware of his ill-health in January 2019.
- Mr C says that he believes his son’s weight loss was due to staff not feeding him correctly and offering food he did not like. As such, he complained the SE failed to establish / investigate that. He said that: while there may have been appropriate SALT nutritional guidelines in place, the staff had not been consistently applying these. He said:
- Staff were giving him food that he dislikes.
- Staff were not ensuring the food was always the right consistency. He said healthcare professionals stopped staff on several occasions from feeding him sub optimal food that was not prepared to a safe consistency.
- In March 2019, SALT spoke to the dietician who Mr C had commissioned privately. The dietician found that the consistency of the main meal was appropriate, and Mr X managed it well. SALT also confirmed nutritional guidelines drawn up were informed by the information shared by Mr C regarding the practice used at home.
- In response to an email from Mr C in May 2019, SALT said it was in the process of ensuring that the kitchen in the nursing home have the SALT guidelines on food consistency and that staff do not give the food if the consistency is not correct.
- The Council said that:
- Mr C’s privately commissioned dietician did not raise any issues with staff not following Mr X’s food preferences.
- Staff feeding techniques were explored and no issues noted nor any requirement for bespoke training for staff on this. Case notes dated 25 April 2019: ‘…reviewed client and provided update to Mr C in email format (…) Confirmed client’s needs not changed, feeding techniques by staff observed and no issues. (…) No bespoke training required for staff’.
Analysis
- When Mr X raised his concern about his son’s weight loss, relevant professionals were involved in reviewing this. The Council had to rely on the expertise of the CCG/Health to investigate certain aspects of Mr C’s concerns. As such, the Council acted appropriately with regards to this.
- In effect, Mr C is unhappy with:
- The fact the health professional(s) was not sufficiently independent, which is something I will look at later.
- Furthermore, he is also unhappy with the quality of the judgement of the health professional(s) involved in looking at this aspect of his complaint. As such, the appropriate step would be to make a complaint about that through the NHS complaints procedure.
- The weight measures show that Mr X’s weight did not fluctuate too much between October 2018 and January 2019. However, there was a drop in his weight of 2 kg during January 2019, which was attributed to various periods of Mr X being ill. The dietician Mr C had recruited said this was concerning, but her response also indicated she was not aware of Mr X’s ill health during this time, which was seen as the cause of this weight reduction.
- The dietician’s report was overall positive about the support she observed and did not raise significant concerns about the type and consistency of the food Mr X received. However, she did mention that a pudding had not been of the correct consistency.
Mr C’s complaint about the SE’s conclusion about the spare feeding tube
- Mr C said the SE failed to reach the correct conclusion about the need for a spare feeding tube. He said he clearly explained to the CCG and staff at the home, what the benefits / importance was of having this spare tube. Mr C said that, considering these reasons, there are no appropriate convincing reasons for not having a spare tube.
- In response, the Council said it acknowledges the feeding tube is used to support Mr X’s fluid intake, nutritional intake as well as medication. However, as part of the safeguarding enquiry, the NHS Clinical Lead and Operational Lead for Dietetics confirmed a spare tube was not a clinical need. The purchase of a spare tube is a clinical decision, and the Council would not be able to compel the CCG to purchase one.
Analysis
- This decision was a clinical decision made by the CCG/NHS. If Mr C is unhappy with it, the appropriate manner to deal with that is to make a complaint through the NHS complaints procedure. Mr C has since done this.
Mr C’s complaint about his suggestion to improve his son’ support
- Mr C said the SE failed to sufficiently support his idea to get some quick improvements in his son’s care by having some people, who used to support his son, visit the care home and provide some suggestions to staff how to improve his son’s care. He said the care home was blocking these people from visiting, which was not in his son’s best interests and there was no justification for blocking these visits/visitors from seeing his son.
- In response, the Council said it did not agree with this statement as records show that people who Mr C considered to be supportive of his son did visit. It is noted that any individual visiting Mr X would need to engage with the provider, and it would appear the service found one visiting individual to be causing disruption to the care being provided. The service has a right to make decisions on the acceptable visiting hours and expectations of the behaviour of visitors in their premises.
- The nursing home initially allowed one of Mr X’s former carers to visit him. However, it told Mr C after the meeting that the visit had been disruptive to Mr C’s care. It also told him that it would not agree for his son to be videorecorded.
Analysis
- Although this happened during the course of the safeguarding enquiry, this was really an issue between Mr C and the nursing home. If he was unhappy with the home’s decision, he should have made a complaint to the home and/or asked the CCG to intervene.
Mr C’s complaint the SE was not independent
- Mr C complained the SE was not sufficiently independent. He said:
- The social worker who investigated the concern became part of the CCG team.
- The nurses they consulted were part of the team as well. So they investigated themselves.
- The GP had two roles: one as a direct employee of the nursing home, the second as Mr X’s GP. In communication with a hospital consultant, the GP signed his email as medical officer for the nursing home, not as Mr X’s GP.
- The Council should have recognised that and ensured it stayed away from the possibility of being accused of bias, by having an independent enquiry with independent experts where needed. Please comment, with supporting evidence, on the entire statement.
- In response, the Council said:
- The Council’s safeguarding policy does not stipulate that it has to consult independent experts.
- The Integrated Continuing Healthcare team was no longer a joint team after 1 April 2019. The social worker who investigated the concern and the enquiry manager remained employed by the Council and neither have worked for the CCG then or now.
- The Council’s Safeguarding Development Team were requested to provide an Independent Chair for the final meeting. The Independent Chair had full oversight of the entire enquiry and the evidence provided to it.
- The CCG were consulted in line with their role as commissioner of the service and providing ongoing oversight of the care package for Mr X. Also providing information and consultation into the enquiry were medical clinicians from the Primary Healthcare Trust Learning Disability Services (SaLT), Dietician (EHST), the GP and the Designated Safeguarding Nurse for the East Sussex CCG. To highlight, it was not allegations made about the CCG that were being investigated during the safeguarding enquiry but rather Mr X’s provider.
- The concerns, as originally raised by Mr C, did not relate to the GP and / or identify any potential conflict of interest. At no time were concerns noted by the enquiry team about the GP.
- The Council’s safeguarding policy says that: Where concerns about clinical / medical / nursing care have been raised, the council must discuss with the Clinical Commissioning Group Safeguarding team to decide who is best placed with the right clinical expertise and knowledge to make enquiries, and where advice can be sought.
Analysis
- The Integrated Continuing Healthcare team was no longer a joint team after 1 April 2019. This meant that it was a joint team for the majority of the SE.
- The CCG, as the commissioners of Mr X’s care, were ultimately responsible for appropriately meeting Mr X’s care needs. As such, I can understand that Mr C was concerned about the Council’s decision that the CCG should investigate (itself) to determine whether his care had been appropriate. I found the Council should have considered (and recorded its deliberations), at the start of the enquiry, whether those it would have to rely on to come to a view about the appropriateness of his (medical) care, were sufficiently independent. I did not see evidence the Council did this, which is fault. However, I am unable to come to a view if this would have made a difference. The Council has told me it is developing a checklist to help investigators with such questions in the future.
Mr C’s complaint about the way the SE ended
- Mr C complained the Council failed to tell him that he needed to provide his comments within a certain timeframe. He said he received an email on 24 September 2019 which said that: “if there are any other areas you feel should be considered please do not hesitate to let me know”. It did not mention these had to be provided by a certain deadline. The Council sent another email on 30 September that said it would give him more time because his son had been unwell and was going through a move to a different home. However, the Council closed the safeguarding enquiry on 2 October, which did not allow him an opportunity to comment / request safeguarding amendments
- As such, Mr C said the Council should have used its discretion, consider his comments and consider if they should reopen the SE due to their fault.
- The Council says it does not share the view that Mr C was not given the opportunity to comment on the safeguarding enquiry. It said Mr C provided feedback at the meetings and on the draft report. However, the Council said it does accept there is no evidence to indicate Mr C was formally advised of the timescale for comments on the final minutes of the conclusion meeting, and apologise for this lack of clarity.
- The Council said the minutes of the safeguarding conclusion meeting show there was a shared agreement by all those present, including Mr C, that the SE could close and the risks had reduced to a point where it was safe enough to monitor Mr X’s care via ongoing care management. However, it would have been supportive for the unresolved issues to have been explicitly referenced in the notes and action plan created to support any reviews going forward. However, this is not a requirement for any concluded enquiry.
Analysis
- Statutory Care Act Guidance says that: What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate. If they lack capacity, it should be in their best interests if they are not able to make the decision and be proportionate to the level of concern. As such, it was important to have waited with closing the SE until Mr C had provided his comments. The Council has now accepted it should have acted differently, for which it is sorry.
Agreed action
- I recommended the Council should, within four weeks of my decision:
- Provide an apology to Mr C for the faults identified above, the distress these have caused him and the time and trouble he had to spend to pursue these matters subsequently with the Council. It should also pay Mr C £500.
- Discuss the lessons learned with those involved in investigating safeguarding concerns and redraft the areas identified above as a learning exercise.
- The Council should, within eight weeks of my decision:
- To review its safeguarding procedures so as to ensure that the Council will always consider and record whether those involved in investigating a safeguarding issue will be independent enough.
- The Council told me it has accepted my recommendations.
Final decision
- For reasons explained above, I found there were faults with the way the safeguarding enquiry was carried out. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.
Investigator's decision on behalf of the Ombudsman