Summary: Mr X complained about the way Miss Y’s care provider dealt with concerns about her plans to self harm. Mr X says the Care Provider did not check her room when asked and this led to a further incident which put her life at risk. We find the Care Provider took appropriate action and we find no fault.

The complaint

1. Mr X complained that when his daughter, Miss Y, took an overdose of around eight tablets, her Care Provider failed to check her room for more tablets. This was because the Care Provider was alerted to the possibility of a further overdose on Miss Y’s return home and did not check her room. On discharge from hospital, Miss Y returned to her room and took a further overdose of around 32 tablets which caused fitting and loss of consciousness. Following this overdose, the Care Provider checked Miss Y’s room. Mr X believes the second overdose could have been avoided altogether if the Care Provider had checked her room after the first overdose as requested, and this put Miss Y’s life at risk. Mr X also feels the Care Provider did not respond adequately to his request to locate Miss Y’s coat after her unexpected admission to hospital. The coat was expensive and contained Miss Y’s ID and bank card in the pocket.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I considered information from both Mr X and the Council.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Background

Human rights

8. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including: the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life (article 8), freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions to respect and protect individuals’ rights.
9. Not all rights operate in the same way. Instead, they break down into three separate categories:
• Absolute rights: those which cannot be taken away under any circumstances.
• Limited rights: those that can be taken away in certain circumstances; and
• Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
10. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
11. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

Multi-Agency Assessment & Management (MARAM) Process

12. Wirral’s MARAM process (available online at Policies, procedures, guidance and protocols | wirral.gov.uk) says it is not possible to eliminate all risks that people face as a result of their own choices and decisions. The procedure is intended to allow agencies to demonstrate that they have worked together to do as much as possible.

Mental capacity assessment

13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

14. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

The contract

15. The Council’s contract with the Care Provider includes the following points:
• “Must not make decisions on behalf of individuals”
• “ensure that the service is delivered in a way that respects and safeguards the persons privacy and dignity at all times”
• “Support individuals to keep their personal information and belongings in a safe and secure place”
• “recognise that they are working in someone else’s home”.

What happened

16. Miss Y lived in supported accommodation. This is accommodation where she had her own tenancy and received support to live independently. Miss Y shared background support with eight other flats. For reasons of confidentiality, I have not named the Care Provider involved in these events.
17. Miss Y’s care plan was about support around her home and learning independent living skills through prompting, encouraging, and helping. This included, for example, help learning to cook and clean, prompting to go for a walk and attend mental health support groups. The care plan also included staff giving her time to talk about her feelings each day. A risk assessment noted that Miss Y was deemed to have capacity and currently had no restrictive practices in place. It said if staff recognised Miss Y was struggling with intrusive thoughts, they should ask her if she would like any high risk items removed from her flat. It notes staff were only to remove items if Miss Y consented and they were to be returned if she asked.
18. Throughout her time in the accommodation, Miss Y was involved, on several occasions, in various incidents of self harm including cutting herself, taking tablets, and swallowing batteries. The Care Provider raised several safeguarding alerts and referred Miss Y to the emergency duty team. At times it also referred Miss Y for a mental health assessment. On some of these occasions, Miss Y attended the hospital accident and emergency unit (A&E) on advice from the Care Provider though she did not always wait to see someone.
19. In early April 2022, the Council held a meeting to review Miss Y’s care and support plan. Mrs X was present at this meeting along with others including various representatives from the Council, the mental health service and the Care Provider. The meeting discussed that Miss Y was not often present at the accommodation and did not use the 1:1 support. The meeting decided it could safely reduce the 1:1 hours to 10 per week, to be delivered mostly at the weekends.
20. In early August, following one of the self harming incidents, a multi agency risk assessment and management meeting (MARAM) considered the risks to Miss Y. She was giving away personal belongings in preparation for ending her life and the Council asked the Care Provider to monitor this. That afternoon, Miss Y told staff at her accommodation that she had taken drugs bought over the internet; they advised her to attend A&E urgently. Although Miss Y went to A&E, she did not remain there as she did not want to see the psychiatric liaison service. Miss Y returned to her accommodation where the Care Provider checked her every 30 minutes. She returned to A&E in the night and discharged herself to her parent’s home.
21. Council records show the social worker spoke to Mr X who said Miss Y was still under the influence of something” but was talking sensibly and rationally about her situation. An approved mental health professional (AMHP) visited Miss Y later that morning and spoke to her for around one hour. They decided a mental health assessment was not needed but gave advice about requesting one if Miss Y was in crisis. Miss Y declined access to the crisis team and said she had no immediate plans to self harm but felt she might make further attempts. The AMHP rated Miss Y’s mood as 9.5/10. Mr X disagrees with this account of the conversation with the social worker and says the AMHP said Miss Y’s mood could deteriorate quickly and to speak to the crisis team if that happened.
22. Miss Y returned to her accommodation and Mrs X was concerned she might have more of the same pills she had taken the previous evening. Mrs X telephoned the Council and said she had also advised the Care Provider. Half an hour later, the Care Provider called the Council advising that Miss Y had taken a further 37 tablets and they had called police and ambulance. A member of staff remained with Miss Y. The social worker discussed with the Care Provider around Miss Y’s mental capacity. They advised that Miss Y would have had capacity when taking the medication but given the type and amount of medication she had taken, her capacity would now be impaired. They also discussed that it was not safe for Miss Y to remain at the accommodation and if she refused to go to hospital, the Police may need to use section 136 of the Mental Health Act 1983 to move her to a place of safety for assessment. The social worker spoke to the mental health team manager for advice and advised the Care Provider to remove any items from Miss Y’s room that could potentially cause harm. This was because Miss Y’s mental capacity was now impaired by the drugs she had taken. Miss Y was taken to hospital in an ambulance The Care Provider checked her room.
23. Mr and Mrs X collected Miss Y’s belongings but could not find her expensive coat which had her bank card and driving licence in the pocket. They asked the Care Provider to look for the coat, but the Care Provider said it could not find it. It suggested that Miss Y may have given it away. Mr X was not happy with that response and says individual members of staff have said no search was completed or that they had seen the coat in the building since Miss Y had gone to hospital. The Care Provider is quite clear that it did look for the coat thoroughly but could not find it.
24. The professionals involved in Miss Y’s care decided she would not be safe to return to her accommodation and should move to a specialist residential mental health service.

Was there fault which caused injustice?

25. Miss Y was adult, had her own tenancy, and could make her own decisions. The Care Provider was not entitled to check her room without her permission as this would risk a breach of her article 8 human rights. Unfortunately, it was only when Miss Y took a significant overdose that her mental capacity became impaired. At this point, the Council advised the Care Provider to search Miss Y’s room and remove items that might put her at risk of harm.
26. I consider the Care Provider gave due regard to Miss Y’s rights and took action when advised by the Council. The Council also gave due regard to her rights and gave the Care Provider appropriate advice as needed. It was neither the Council’s, nor the Care Provider’s fault that Miss Y took the second overdose and I found no fault in the way they dealt with this.
27. The Care Provider did not have responsibility for Miss Y’s personal property, only to support her to keep her belongings in a safe place. In terms of Miss Y’s care plan, this was around encouraging and giving her advice about how to do this and the potential consequences should she decide not to do so. Miss Y was still free to choose what she did with her personal belongings. I am satisfied that, on the balance of probability, the Care Provider checked the property for Miss Y’s coat when asked, but the coat was not there. It does not know whether Miss Y gave away the coat, but suggested this might be an explanation for it being missing. Mr X is not happy with this explanation. However, Miss Y was being supported to live an independent life, and the Care Provider had no control over what she did. This is not to say it wasn’t the result of wrongdoing that the coat went missing, but that we cannot know. The Care Provider was limited to how much it could do in the absence of any evidence.

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Final decision

28. I have completed my investigation and do not uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman