Summary: The Council failed to investigate Mrs X’s concerns about the treatment of her late mother Mrs A at an early stage. As a result, it was not until nine months later that a safeguarding investigation was commenced. The Council acknowledges it delayed unnecessarily and has already taken steps to review its processes. It will also now apologise to Mrs X, and offer a sum in recognition of the way it failed both her and Mrs A.

The complaint

1. Mrs X (as I shall call her) complains the Council failed to take seriously the concerns she reported in June 2022 about her elderly mother Mrs A. She says it was not until February 2023 when she saw some meeting notes from November 2022, that she realised that a safeguarding alert should have been raised. She says as a result Mrs A was suffering unauthorised restraint for some months.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

4. I considered all the information provided by Mrs X and by the Council. I spoke to Mrs X. Both Mrs X and the Council 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 – Mental Capacity and DoLS

5. 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.
6. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
7. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
8. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.

Relevant law and guidance - safeguarding

9. A council must make enquiries if it thinks 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

10. Mrs A lived at home. She had Alzheimer’s disease. The Council funded 24-hour live-in care and a support package to assist the live-in carer. As no-one had power of attorney for Mrs A, the Court of Protection agreed a community DoLS authorisation.
11. Mrs A took an anti-coagulant medication, Warfarin. A common side-effect of warfarin is bruising. The monitoring of warfarin dosage includes regular blood testing to check the INR (international normalised ratio) levels.
12. In June 2022 Mrs X visited Mrs A at home. On 20 June she contacted the manager of the care agency and Mrs X’s social worker. She said she had noticed her mother had lost weight. She also noticed red marks and bruising around Mrs X’s wrists and asked how these had happened.
13. The Council’s records show that the manager of the care agency emailed Mrs X. She said “Regarding bruising, I am aware of this and can confirm when being on Warfarin the skin is extremely delicate and bruises from touch. Since 20th May she has had 4 INR checks and her Covid Booster. These can be difficult to administer with (Mrs A’s) behaviour and Nurses have raised no concerns. The carers have made me aware of red marks initially which then turned to bruises.”
14. The safeguarding social worker discussed the concern with Mrs A’s social worker. Mrs A’s social worker said she had no concerns about the package of care and support and felt that “what the provider have said regarding the bruising, its likely to be the cause of it.” She said Mrs X had a longstanding grievance against the manager of the care agency and raised frequent concerns.
15. The safeguarding social worker noted on file she had also asked the community nurse who was due to visit Mrs A on 24 June to check Mrs A's wrists. She spoke to Mrs X and explained she had “looked into the concerns and could not find any evidence contrary to what the manager of the agency have said, which is also supported by other professionals”. The safeguarding enquiry was closed without proceeding to investigation on the grounds there was no evidence of abuse or wrongdoing.
16. In November 2022 there was a Best Interest Meeting (BIM) held to discuss options for Mrs A’s care. Mrs X was not present. The community nurse said she saw Mrs A fortnightly. She said her main concern was around “completing the INR’s, (Mrs A) finds this stressful, and getting a sample is difficult for nurses”. The meeting notes continue, “(the nurse) finds completing the INR’s difficult as she is unable to explain to (Mrs A) what she is doing and why. She has to restrain her and keep her hands still, which is unpleasant for both (Mrs A) and the carers”.

The safeguarding investigation

17. It appears that the minutes of the November meeting were not available until shortly before the next planned BIM in February 2023. When Mrs X read the notes from the November BIM, she contacted Mrs A’s social worker on 7 February with her concerns. The social worker referred the matter to the safeguarding team which decided to proceed to an investigation.
18. On 9 February a mental capacity assessment determined Mrs A lacked capacity to make a decision about the warfarin and the need for blood test monitoring.
19. On 10 February there was a BIM to determine how the monitoring could be carried out safely. The meeting heard the concern that “District Nursing staff and the care agency staff have to gently but firmly restrain Mrs A’s fingers, hand and arm to complete the blood test of a finger prick to use in monitoring the Warfarin dosage required.”
20. The safeguarding investigation report stated there was no best interest decision or risk assessment in place for restraint in any circumstances. The two main carers for Mrs A said obtaining the samples had always been difficult. They said “INR testing became easier as (Mrs A) became less 'able to be so vocal and rude and also not so feisty, despite her not being able to understand fully what was going to happen'”. The carers’ manager said she did not think it was her place to report the actions of the District or Community nurses in respect of a safeguarding concern.
21. The conclusion of the safeguarding investigation was that the care provider was “remiss in their duty to safeguard (Mrs A) from the distress caused by continued INR testing which was enabled using restraint.” The investigation report noted “The care provider was aware of the issues with INR testing, but states that they would hold (Mrs A)'s other hand to provide reassurance. However, they would have witnessed restraint taking place and did not report this as a concern. The provider Manager felt that it was not their role to report a concern that involved District or Community nurses. It is clear that Care staff had knowledge of (Mrs A)'s previous reluctance for INR testing but did not advocate for her. They relied on the fact that she was less able to object as her cognition declined to enable this practice to continue.”
22. Mrs A died in July 2023.
23. In August 2023 Mrs X complained to the Council about the way her safeguarding concerns had been dismissed in June 2022. She said within 24 hours of her raising the concern, the safeguarding social worker had telephoned her to say “none of the professionals involved” had any concerns about the bruises and marks she had seen on her mother’s wrist. She said the matter was not taken seriously until it was recorded in the November BIM minutes and she raised it again in February with Mrs A’s social worker.
24. A locality manager replied to Mrs X’s complaint. She said that Mrs X had not raised any new issues. She went on, “However, in regard to the delay in reporting the safeguarding issue, I agree that there was indeed a delay. Concerns around the management of the Warfarin were raised in the Best Internets Meeting, with the GP and other health professionals being strongly advised to undertake a Capacity Assessment and to make a Best Interests Decision around this; …. (The) Social Worker, followed this up further after the meeting. My view is that it should have gone to the Safeguarding Team earlier. I can confirm that I have taken this forward as a learning with (the social worker) and the wider team.”
25. Mrs X complained to the Ombudsman. She said she did not believe that concerns raised by families were considered with the same weight as those raised by professionals. She said it was only after she received the November BIM minutes that she realised the professionals who had not raised concerns about the bruises on her mother’s wrists were the same people who were present when they were caused, and had been criticised by the safeguarding enquiry. She said it had caused her much distress to know that her mother had been restrained for the INR tests for months longer than might have been the case if her concerns had been properly investigated from the start.
26. The Council says recommendations about the care provider’s role in safeguarding were shared with the CQC and the Council’s contract monitoring team. It says it has apologised and agreed a safeguarding concern should have been referred for investigation after the November BIM.

Analysis

27. The Council failed to carry out a sufficiently robust safeguarding enquiry when Mrs X raised her concerns in June 2022. The enquiries which were made were directed straight to the people who were involved in the restraint which caused the bruising – the community nurses, and the care provider – and to Mrs A’s social worker, who had formed a view of Mrs X as someone who had a longstanding grievance about the care provider. Her view that “what the provider have said regarding the bruising, its likely to be the cause of it” was accepted without challenge or further investigation. That was fault which caused injustice to both Mrs A – who continued to be restrained in a way no care plan or DoLS authorisation allowed for – and to Mrs X who was (rightly, it appears) given the impression her concerns were not taken seriously.
28. There was a further delay after the matter was raised in the November BIM. A clear statement was made at that meeting by the Community Nurse that they had to restrain Mrs X to carry out the blood tests, but that was not properly actioned until February when Mrs X raised it again after she saw the meeting notes. That compounded the impression that the Council was not taking the matter seriously.
29. The Council says it has taken the learning from the delay after the November meeting but it seems to me it should also examine more closely the way it responded to the concerns raised in June 2022 by Mrs X.

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Agreed action

30. Within one month of my final decision the Council will review its response to the safeguarding concern raised in June 2022 and consider what different steps it should have taken then;
31. The Council acknowledges that its failure to investigate critically at that point caused injustice both to Mrs A and to Mrs X;
32. Within one month of my final decision the Council will apologise to Mrs X specifically for its failure at that point, and offer her £500 for the distress caused by its poor service;
33. Within one month of my final decision, the Council will also review the way it monitors safeguarding training within the care providers it commissions.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed this investigation. I find fault on the part of the Council which has caused injustice to the late Mrs A and to Mrs X. Completion of the recommendations at paragraphs 30 – 33 will remedy the outstanding injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman