Summary: Mr and Mrs K complained about a delay in their son Mr A’s diabetes being diagnosed, and about a care provider destroying Mr A’s care records. We found fault by the care provider in destroying Mr A’s records and in how it responded to the complaint. We did not find fault with the care provider about the timeframe of Mr A’s diabetes diagnosis, or by the Council and NHS Trust also involved in Mr A’s care. The care provider, in liaison with the Council, has agreed to take action to improve its services, and to pay a financial remedy to Mr and Mrs K.

The complaint

1. Mr K complains on behalf of his adult son Mr A, who is autistic, has a learning disability and cannot bring the complaint himself. Mr K complains there was a delay in diagnosing his son’s Type 2 diabetes when he lived in placements with Dignus Healthcare Ltd (Dignus) between 2015 and 2018. Mr A’s placements with Dignus were jointly funded by the local authority (Coventry City Council) and the NHS (NHS Coventry and Warwickshire Clinical Commissioning Group). Mr A also received support from Coventry and Warwickshire Partnership NHS Trust (the Trust) including its Intensive Support Team.
2. Mr K says shortly after Mr A moved from Dignus to a new placement in late 2018, he was assessed and diagnosed with Type 2 diabetes. Mr K also complains Dignus wrongly destroyed his son’s care records after he left their placements.
3. Mr K says Mr A suffered significant physical health symptoms before his Type 2 diabetes was diagnosed, including weight gain, lethargy and incontinence at night. He says Mr A might also have suffered long term physical damage due to the delayed diagnosis and treatment for his diabetes.
4. Mr K wants the organisations to accept failings in Mr A’s care in relation to the diabetes diagnosis. He wants staff to be educated and trained to spot signs suggesting possible Type 2 diabetes in service users, and for no other service user to experience this poor level of care.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
7. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. We normally expect someone to refer an issue to the Information Commissioner (ICO) if they have a complaint about data protection. However, we may decide to investigate this if we think there are good reasons. (Local Government Act 1974, section 24A(6) as amended, and Health Service Commissioners Act 1993, section 3(2)
10. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

11. I have considered information Mr K provided in writing and by phone. I have also considered written information from the Council, the Trust and Dignus, as well as relevant law, policy, guidance and reports from the Care Quality Commission (CQC).
12. I have obtained third party information from another NHS Trust involved in Mr A’s care, a Clinical Commissioning Group, another care provider Mr A was placed with, and three GP practices that provided care to Mr A.
13. We consider the Council to be the responsible organisation for the social care funded part of Mr A’s placement at Dignus, and Dignus (as an NHS provider) as responsible for the NHS-funded part of his placement.
14. The Council’s All Age Disability Service was also responsible for coordinating Mr A’s care during the period we are investigating, and he also received input from the Trust’s Intensive Support Team (Learning Disabilities).
15. Mr K and the organisations had the opportunity to comment on a draft of this decision. I took all comments into account before making my final decision.

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What I found

What should have happened: relevant law and guidance

Relevant law and guidance

16. The Care Act 2014 sets out councils’ duties in relation to assessing people’s needs for care and support. The Care and Support Statutory Guidance provides councils with information about how they should meet their legal obligations under the Care Act 2014. The Guidance says councils must:
• promote wellbeing when carrying out their care and support functions for a person, which includes physical health
• ensure the person receives care and support which meets their needs, including when that care and support is given by a provider acting on the Council’s behalf
• ensure care being provided on the council’s behalf is safe and effective
• provide person-centred care, and use person-centred care planning, which is particularly important for people with complex needs
• prevent harm and reduce the risk of neglect (neglect includes ignoring medical, emotional or physical care needs, and failing to provide access to appropriate healthcare services)
• work in an integrated way with other services such as NHS health colleagues
17. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the CQC 2014 Regulations’) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC)’s Fundamental Standards give guidance to care providers on how to meet the requirements of the Regulations. The following standards are relevant to how Dignus managed Mr A's care:
• Regulation 9 - providers must make sure each person receives appropriate person-centred care and treatment based on an assessment of their needs and preferences
• Regulation 12 - providers must provide safe care and treatment, and prevent avoidable harm or risk of harm
• Regulation 16 - complaints must be appropriately investigated, and appropriate action taken in response
• Regulation 17 - providers must keep accurate, complete and detailed records of care and treatment
18. The CQC guidance “Registration under the Health and Social Care Act 2008 – Statutory Notifications” guidance says:
• Regulation 18 – providers must notify the CQC of all incidents that affect the health, safety and welfare of people who use services
19. 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.
20. 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.
21. The Service Model “Supporting people with a learning disability and/or autism who display behaviour that challenges, including those with a mental health condition” was published by NHS England, the Local Government Association and the Association of Directors of Adult Social Services in 2015. It sets out nine core principles for good services and support for people with a learning disability and/or autism. The principles include:
• Person-centred care that is planned, proactive and coordinated
• Ensuring paid support and care staff get they help they need to support the person to live in the community (rather than in an in-patient setting)
• Providing good care and support from mainstream healthcare services, including an annual health check and a Health Action Plan
• Delivering collaborative and integrated health and social care support, including between specialist and mainstream services
22. The National Institute for Health and Care Excellence (NICE) has issued guidance on “Challenging behaviour and learning disabilities: prevention and interventions for people with learning disabilities whose behaviour challenges” (2015). This says:
• GPs should offer an annual physical health check to adults with a learning disability in all settings, carried out with a family member, carer, healthcare professional or social care practitioner who knows the person
23. The General Data Protection Regulation (GDPR) sets out the principles, rights and obligations for processing personal data. The Information Commissioner (ICO) has powers to take enforcement action against a data controller (here, Dignus Healthcare Ltd) if it breaks one of the data principles.

What happened - background events

24. Mr A lived in a supported living placement at Colliers House, run by Dignus, between 2015 and 2018. During that time he had psychiatric reviews with the Trust’s Community Learning Disability Team (CLDT). The CLDT noted Mr A had gained a lot of weight and appeared to sweat a lot more than normal. His psychiatrist thought this was due to his high dosage of medication being reduced. Mr A was also known to make frequent visits to the shops to buy chocolate and fizzy drinks, and this was identified as a problem which Colliers House sought help with from the Trust.
25. In December 2017 the CLDT referred Mr A to the Trust’s Intensive Support Team (IST) as they were concerned about the suitability of his placement at Colliers House. In January 2018 the CCG and Council decided Mr A needed to move from Colliers House and proposed another placement with Dignus, at Ebenezer House. This was planned as a temporary move until a permanent and more appropriate placement could be found. Mr A moved to Ebenezer House in March 2018.
26. Two days before the move to Ebenezer House, staff at Colliers House arranged for a GP to review Mr A as they noted he was urinating more than usual. The GP arranged a urine sample which showed Mr A had a urine infection. The infection was treated with antibiotics. The GP also noted Mr A’s urine had high sugar levels in it.
27. After the urine sample results Mr A’s care team at Ebenezer House liaised with the IST and the CLDT during March and April 2018 about how to take blood samples from Mr A, to investigate the potential issues highlighted by the urine glucose levels. Mr A has an intense phobia of needles (Trypanophobia). Mr A’s psychiatrist suggested Mr A’s GP should chair a Best Interests meeting so bloods could potentially be taken against Mr A’s wishes.
28. Mr A had another GP appointment in mid-April, at a different GP Surgery and with a different GP, as Ebenezer House was in a different area. The GP noted that Mr A was refusing to have blood tests done. The GP said they had discussed the issue with Mr A’s carers and the plan was to “concentrate on healthy lifestyle mainly healthy diet and exercise in view of high BMI”. Dignus told us its recollections from that appointment were that the GP did not think there was justification to put Mr A through the stress of blood tests unnecessarily.
29. Shortly after this, Mr A’s psychiatrist and the CLDT discharged him from their care and transferred him to the local Learning Disability Team at a different NHS Trust, as he had moved address.
30. In mid-June Dignus contacted the GP Surgery again as they had noticed Mr A was passing strong smelling urine, and he had complained of some discomfort. The Surgery asked Dignus to get a urine sample, and the sample was then sent to the laboratory for culture and sensitivity. This is a test to look for bacteria in the urine that could be causing an infection in the urinary tract.
31. The results of the urine sample, entered into the GP records on 18 June, said “mixed growth / inconclusive. Repeat if clinically indicated.” Mixed growth means the sample is likely to have been contaminated by bacteria from the skin or genital area rather than from the urinary tract itself. If the urine specimen is not contaminated, only a single bacterial growth will be identified as the source of the infection.
32. There is nothing in the remainder of Mr A’s GP records during 2018 to suggest Dignus had any further concerns about his urine, discomfort or related matters. The GP Surgery carried out a medication review in September 2018. In early November 2018 a routine urine sample was taken and analysed, and was noted to be “normal / acceptable”. In mid-November 2018 the GP Surgery carried out a Learning Disability Health Examination of Mr A, which included measuring his BMI and weight. He was noted to weigh 136kg and to have a BMI of 46.5, compared to 49.6 in May 2018. The GP Surgery noted that blood tests were discussed at the appointment but that “patient won’t allow blood test OR to answer questions – trust issue – spoke to (x) who will attempt trust. Attended with carer. Will not allow flu jab.”
33. The next entry in the GP Surgery records is for mid-January 2019, stating that a Learning Disabilities Health Action Plan was completed. We have not been sent a copy of this document. There is no evidence to suggest blood tests were taken after Mr A’s attendance at the GP Surgery on 15 November 2018 when the need for routine blood tests was discussed.
34. In terms of Mr A’s placement at Ebenezer House, at a review meeting between the Council, Dignus and Mr and Mrs K in July 2018, they agreed Ebenezer House was not a suitable long-term placement for Mr A. The Council started looking for alternative placements with vacancies. It took some time to arrange a new placement for Mr A. He moved to a new placement (which I will call Placement F) in early December 2018.
35. In February 2019, the Council and Placement F carried out a review of Mr A and his care needs. They noted Mr A was overweight, this was being monitored and he should be encouraged to get more exercise. Placement F also said they had not had any handover information from Dignus about Mr A and his needs, and he had not had any psychiatric care since moving placement either. Placement F then emailed the CCG and Mr A’s social worker to say they urgently needed a mental health medication review for Mr A, and without this his placement with them would be put at risk.
36. The Intensive Support Team at the NHS Trust local to Mr A’s placement with Placement F (which I will call NHS Trust W) carried out an assessment of Mr A’s needs in late February 2019. Placement F told NHS Trust W that Dignus had not given them an accurate picture of Mr A’s needs and behaviours before he moved there. They also said Dignus had refused to share any information with them since, “…..basing their decision on GDPR data protection. I am very concerned about this as for continuity of his care it is vital that we are able to access historical information and previous support plans.”
37. NHS Trust W said a Root Cause Analysis should be completed, looking at the recent care journey for Mr A. They flagged up potential concerns about lack of psychiatric oversight of his medication, lack of specialist healthcare support, and a failure to transfer Mr A’s care to the CLDT that covered his placement at Placement F when he moved there.
38. In early March 2019 a locum consultant psychiatrist from NHS Trust W reviewed Mr A. They noted Mr A’s weight and obesity and said a urine sample was needed to test for diabetes. In mid-March Mr A’s GP noted the glucose levels in Mr A’s urine were high and he needed a blood test. A multi-disciplinary meeting (MDT) was arranged for a week later. The MDT agreed that Mr A did not have capacity to consent to a blood test, and that his parents had agreed for a proportionate amount of force to be used for the blood test if needed ,as this would be in his best interests for his health.
39. Mr A had blood samples taken on 26 March 2019. The blood results showed Mr A had raised blood sugar levels and was diabetic. This information was shared with Mr and Mrs K on 29 March. Mr and Mrs K raised concerns about the mismanagement of Mr A’s health needs and wellbeing. NHS Trust W confirmed a Root Cause Analysis (a tool to learn from mistakes and drive improvements) would be arranged.
40. Mr and Mrs K met with the Council to discuss their concerns about Mr A’s care and support. They raised concerns about a lack of medication reviews, and a delay in diagnosing Mr A’s diabetes bearing in mind he had been drinking lots, had continence issues at night, mood swings and excessive tiredness. They wanted to know why these issues were not followed up, either in March 2018 when high glucose levels were noted in his urine, or after he moved from Dignus to Placement F.
41. In early August 2019 after a Care and Treatment Review, Mr A was admitted to hospital for assessment in view of his deteriorating behaviour. Mr A was then detained under the Mental Health Act, and he is still an in-patient at the present time. Mr A was also found to have a Deep Vein Thrombosis (DVT) in one of his legs in 2019. Mr and Mrs K said medical staff told them this could have been due to his poorly managed diabetes as diabetes increases the risk of DVT.

Complaint investigations

42. The Council responded to Mr and Mrs K’s complaint in May 2019. It said Mr A’s records showed there was glucose in his urine during his placements with Dignus and this was not followed up appropriately. The Council said Mr A’s placement with Dignus was managed jointly by the Council and the NHS, and the Trust may be able to comment on why there had been a delay in investigating potential indicators of diabetes.
43. Mr and Mrs K approached the Local Government and Social Care Ombudsman about their complaint. The outcome of this was a recommendation for a joint complaint investigation by the Council and the Trust.
44. The Council provided a second complaint response in late September 2019. It said the IST at the Trust and Placement F had both raised concerns that Dignus did not share documentation and support plans about Mr A around the time of his move to Placement F, which Dignus said was for data protection reasons. The Council said it would have expected a greater level of co-operation from Dignus. The Council said there had been a breakdown in communication in terms of sharing information when Mr A moved from Dignus to Placement F. It said it would work with the CCG on issues of better continuity of care in health care delivery.
45. The Trust provided a response to Mr and Mrs K in early October 2019. It said the CLDT mostly works with people on issues relating to their learning disability. It said its staff did not carry out physical health checks with Mr A, as they knew his GP was overseeing his physical health. The Trust said its staff had not observed any symptoms that would lead to them raising a concern with Mr A’s GP.
46. Dignus provided information about its care for Mr A, to the Parliamentary and Health Service Ombudsman and to Mr and Mrs K’s MP, in November 2020. It said it had been trying to locate Mr A’s care records but they had been accidentally destroyed as part of a routine data cleanse. It said this was not in line with its data protection policies and was a genuine error. Dignus said it had since invested in new technology that would allow it to record daily records electronically (rather than in hard copy), which would make data storage, retention and security much better.
47. In the information given to the Parliamentary and Health Service Ombudsman, Dignus said the only comment it could make (in view of not having Mr A’s care records) was that any medical appointments would have been attended by Mr A’s parents and would be recorded by the relevant NHS organisation, so those records should still exist. Dignus said it was unable to provide a meaningful response to the complaint because it no longer had any record of Mr A's care.
48. Mr and Mrs K said Dignus never asked them to attend a medical appointment with Mr A.
49. In addition to the complaint investigations, the CCG carried out a Root Cause Analysis in August 2019. This mainly focused on later events not directly related to this complaint. However, the Root Cause Analysis Report did note that Mr A may have underlying health issues that could be impacting on his behaviour, including poorly managed diabetes. It also noted that there had been at least four breakdowns of his care placements.

Delayed diagnosis of diabetes

Evidence from the Council

50. The Council told us Mr A’s allocated worker from the All-Age Disability Team maintained frequent contact with Mr A and his family as well as attending professional meetings including Care and Treatment Reviews, MDT meetings and case conferences.
51. The Council said Dignus had told Mr A’s social worker that it had shared Mr A’s care plans, medical history, medication information and behaviour plans with Placement F before his move there, and that Placement F understood his behaviours before it agreed to accept him and offer a placement. However, the Council said Dignus later said no information had been shared because it was following data protection regulations and could not share information outside of the organisation.
52. The Council said its social care team had no knowledge of Mr A having glucose in his urine until March 2019 when there was an emergency MDT meeting. The Council said if the Trust’s IST was aware that glucose had been identified in Mr A’s urine (in March 2018), the Council would have expected medical intervention to look into this further. It said once the issue was discussed at the emergency MDT in March 2019, action was taken by NHS colleagues “who rightly led on this element of [Mr A’s] care and support”.
53. The Council told us it had followed up issues with Dignus about data recording and record retention, and it had monitored Dignus’ progress with this to make sure all care records are held electronically. It said Dignus has now fully implemented this electronic system, and random checks are carried out as part of the Council’s quality assurance visits to the placements. The Council said it had also asked Dignus to raise this incident with the Information Commissioner’s Office and report it as a data breach.

Evidence from Dignus

54. Dignus told us that although Mr A’s care records had been accidentally destroyed, it had been able to retrieve email correspondence about Mr A and had used this to produce an overview document setting out his care. Dignus said it had produced this document in 2020 and shared it with the Council. It said it thought the Council would share this document with Mr and Mrs K but it appeared this had not happened. Dignus said it wanted to apologise to Mr and Mrs K that this information had not been shared with them due to a misunderstanding.
55. Dignus said the care it was commissioned to provide was social care, not health or medical care. It said its care staff are not medical professionals, and the oversight of Mr A’s medical condition was the responsibility of external medical professionals including the GP and some specialist teams.
56. Dignus said it acknowledged it had an important role in ensuring people it supports receive the medical help and care they need. It said where care staff identify a change in a resident’s behaviour or needs, or a resident shows other signs of needing medical treatment or assessment, this is escalated to the appropriate medical professional.
57. Dignus noted that Mr A had external support from four psychiatrists, a community nursing team and the Trust’s IST, and a specialist multi-professional health and social care team provided assessment, support and treatment. It said Mr A also had GP support whilst he was placed at Colliers House and Ebenezer House.
58. Dignus said when Mr A was showing “behaviours that challenge” during his placements, he could become incontinent. It said Mr A was also obsessed with food and would regularly binge on sweets, chocolate and fizzy drinks. Dignus said all the medical professionals involved were aware of these behaviours, and although Mr A had gained weight this was attributed to his eating habits.
59. Dignus said it had taken Mr A to the GP in early March 2018 due to his increased urination. It said this was an appropriate and timely response to take. It said after that it was reliant on the expert opinion of medical professionals. In its chronology, Dignus said in April 2018 the manager at Ebenezer House contacted Mr A’s psychiatrist and the IST to advise that Mr A had seen a GP on 11 April 2018 and the GP felt there was not an urgent need for a blood test, and there was no justified reason for a blood test at that time. Dignus said this information was taken from its email records. This appears to be supported by the evidence in Mr A's GP records, set out in paragraph 27.
60. Dignus told us that since these events, it was planning to implement a diabetes awareness session to help staff identify symptoms and refer concerns to an appropriate medical professional. Dignus also said it wanted to propose donating £250 to a charity for people living with diabetes, if Mr and Mrs K were in agreement to this.

Evidence from the Trust

61. The Trust told us its psychiatry team was reasonable for monitoring and reviewing Mr A’s mental health and behavioural problems, and his medication. It said the IST’s role was to put support, strategies and interventions in place to reduce the risk of Mr A needing to be admitted into hospital. The Trust said that on 11 April 2018 information from Mr A’s GP indicated a plan to promote healthy lifestyle, healthy eating and exercise due to Mr A’s needle phobia.
62. The Trust said the overall responsibility for Mr A’s health care lay with his GP, and the GP would have used their clinical judgement to decide whether to follow-up the urine glucose identified in March 2018.
63. The Trust said its IST became involved with Mr A again when he moved to a placement with Placement F, so it could support the local IST (at a different NHS Trust) and provide relevant background information about Mr A’s care needs. The Trust’s IST worked with the new IST for a period of three weeks in March 2019. Its recommendations included close monitoring of Mr A’s physical health and reporting any changes immediately.

Analysis

64. Our investigation has been limited by the lack of care records from Mr A’s placements with Dignus. However, we have been able to build up a picture of events from other sources as set out in paragraph 13. When investigating, we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened, on balance of probabilities.
65. Mr K’s main complaint is about a delay in diagnosing Mr A’s Type 2 diabetes when he lived in placements with Dignus Healthcare between 2015 and 2018. During that time Mr A also received input into his care and support from the Council and the Trust, as well as primary care from different GP Surgeries.
66. I have not been able to establish when Mr A first started displaying symptoms suggestive of possible Type 2 diabetes, due to lack of care records from Dignus. However, I can see that when Dignus noted Mr A was urinating more than usual in March 2018 the care staff arranged a GP review. The GP identified a urine infection through taking a urine sample, and prescribed antibiotics. The urine sample also highlighted that Mr A had high sugar levels.
67. Dignus worked with the IST and CLDT in March and April 2018 to look at arranging for blood samples to be taken from Mr A to further investigate the high sugar levels. This issue needed to be approached carefully and sensitively in light of Mr A’s intense fear of needles.
68. When Dignus took Mr A for a GP appointment again in mid‑April 2018, at a different GP practice and with a different GP, the GP said Dignus should “concentrate on healthy lifestyle mainly healthy diet and exercise in view of high BMI”. Dignus told us its recollections from that appointment were that the GP did not think there was justification to put Mr A through the stress of blood tests unnecessarily. We do not have any evidence to support or refute this statement from Dignus.
69. Dignus took Mr A to the GP again in June 2018 as they noticed he was passing strong smelling urine. A urine sample was taken and sent for culture and sensitivity, and the results were inconclusive. There are no further mentions of problems relating Mr A in terms of urination or discomfort during the rest of 2018.
70. It has not been possible to establish whether Dignus concentrated on ensuring Mr A had a healthy lifestyle including diet and exercise as his care records from his placements have been destroyed.
71. Weighing up all the available evidence, it is my view that if Mr A had displayed further symptoms in terms of frequency of urination, smell or discomfort, Dignus is more likely than not to have taken him for further medical review by the GP. The evidence I have seen shows that Dignus sought medical attention for Mr A on other occasions, when required.
72. I have also noted from Mr A’s GP records that in early November 2018 a routine urine sample was taken and analysed and was noted to be “normal / acceptable”. There do not appear to have been grounds for further action by Dignus at that time.
73. I have not identified fault in Dignus’ actions in relation to arranging for further investigation of possible Type 2 diabetes during 2018. Dignus acted on the basis of medical advice from the GP, as set out in paragraph 66. In addition, no concerns were highlighted by the routine urine sample in November 2018. Mr A was seen by the GP surgery three more times during 2018 after the April appointment, including for an annual Learning Disability Health Examination in November 2018 in line with guidance from NHS England and NICE. This shows Dignus was acting in line with the IST recommendations in May 2018 to ensure Mr A was supported in engaging in regular health checks with primary care providers.
74. By the time further concerns came to light suggesting possible diabetes, in March 2019, Mr A was at a different placement. Prompt action was taken to investigate this further, leading to a diagnosis of Type 2 diabetes and steps to manage this including medication and lifestyle advice.
75. I have not identified fault by the Council in terms of the timeframe for diagnosis of Mr A’s Type 2 diabetes. Mr A’s day-to-day care and monitoring was the responsibility of Dignus, acting on behalf of the Council and also as an NHS provider, during 2018. In its role overseeing and co-ordinating Mr A’s care, I have not seen anything that would have prompted the Council to act and to arrange for further investigations during 2018.
76. In terms of the Trust’s role, the IST and CLDT liaised with Dignus in March and early April 2018 about how to desensitise Mr A so blood tests could be taken. However, the Trust was then advised that Mr A’s GP said the plan was to “concentrate on healthy lifestyle mainly healthy diet and exercise in view of high BMI”. Taking this into account, I have not seen grounds for the Trust to take any further action at this point. I have not identified fault.

Destruction of care records

77. Mr A’s care records were wrongly and/or accidentally destroyed by Dignus. Dignus said this happened as part of a routine data cleanse. Dignus told us it completed a self-assessment form for the Information Commissioner, to determine whether it needed to report the breach further. Dignus told us the assessment said due to the low risk of harm there was no requirement to notify the ICO. Dignus also said it did not contact the CQC at the time as it did not feel this incident met the requirements for notifying the CQC.
78. Dignus told us the CQC had later got in touch about the issue as a result of a complaint. Dignus said it had written to the CQC in early 2022 to outline what had happened, and about the actions taken. At the time of responding to us Dignus said it was still waiting for a response from the CQC. We have not seen any further evidence about this.
79. The CQC inspection reports for Colliers House (December 2020) and Ebenezer House (May 2022) both have an overall rating of Good.
80. Dignus said it would like to offer Mr and Mrs K £250 in recognition of the inconvenience and frustration caused to them.
81. The Council told us it had followed up issues with Dignus about data recording and record retention, and it had monitored Dignus’ progress with this to make sure all care records are held electronically. It said Dignus has now fully implemented this electronic system, and random checks are carried out as part of the Council’s quality assurance visits to the placements. The Council said it had also asked Dignus to raise this incident with the Information Commissioner’s Office and report it as a data breach.

Analysis

82. Dignus has accepted that Mr A’s records should not have been destroyed, and it acknowledges this has caused Mr and Mrs K inconvenience and frustration.
83. Dignus has explained why it did not report the accidental destruction of Mr A’s care records to the ICO or CQC. I have looked at the guidance from the ICO and CQC about the circumstances in which a notification should be made. Having done so, I am satisfied with Dignus’ explanation as to why it did not make notifications at the time.
84. The ICO’s self-assessment tool for data breaches confirms that in these circumstances, the personal data breach (an incident affecting the availability of personal data) is not likely to have caused a high risk to an individual’s rights and freedoms. The tool indicates that in these circumstances there is no requirement to notify the ICO. The ICO guidance makes it clear that not every breach needs to be reported. Dignus has provided a copy of the self-assessment it completed, which confirms that the incident did not need to be notified to the ICO.
85. In terms of the CQC, it says providers must notify CQC of all incidents that affect the health, safety and welfare of people who use services. The full list of incidents is set out in Regulation 18 of the Care Quality Commission (Registration) Regulations 2009. I have reviewed the list of notifiable incidents and am satisfied that the circumstances in this case did not meet the threshold for a notification to the CQC on the evidence available at the time.
86. Nevertheless, the destruction of Mr A’s care records was a breach of Regulation 17 of the CQC 2014 Regulations, the requirement to keep accurate, complete and detailed records of care and treatment. Most health and care records are kept for a minimum of eight years after the last episode of treatment or care. Mr A’s records were destroyed before the end of that period. This was fault.
87. As a result of this fault, Mr and Mrs K have faced a very long and convoluted process trying to get answers about Mr A’s care at Dignus and whether there were failings in the timescale for identifying and diagnosing his Type 2 diabetes. If Mr A’s care records had still been available Mr and Mrs K could have received answers to their concerns much sooner. They have been caused significant and avoidable inconvenience, upset and frustration.
88. In addition, Dignus does not appear to have acted in an open and accountable way in trying to ensure Mr and Mrs K’s concerns were answered. When Dignus provided information about Mr A to the Parliamentary and Health Service Ombudsman in November 2020, it said the only comment it could make (in view of not having Mr A’s care records) was that any medical appointments would have been attended by Mr A’s parents [albeit this was not actually the case], and would be recorded by the relevant NHS organisation, so those records should still exist. Dignus said it was unable to provide a meaningful response to the complaint because it no longer had any record of Mr A's care.
89. As Dignus was able to provide us with a detailed chronology of events in response to our decision to investigate the complaint, this information could and should have been made available to the Parliamentary and Health Service Ombudsman and/or Mr and Mrs K's MP when these issues were discussed in November 2020. This could have provided Mr and Mrs K with a much earlier answer to some of their concerns and avoided their prolonged inconvenience and frustration. Dignus said it had provided the chronology to the Council when it was investigating Mr and Mrs K’s complaint. Having reviewed the Council’s complaint file, I have not seen any evidence to support this. I have concluded this was fault by Dignus and not in line with:
• Regulation 16 of the CQC 2014 Regulations - complaints must be appropriately investigated, and appropriate action taken in response
• Parliamentary and Health Service Ombudsman “Principles of Good Complaint Handling” – dealing with complaints promptly, resolving problems and complaints as soon as possible, responding flexibly to the circumstances of the case, and being open and honest when accounting for decisions and actions

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Agreed action

90. As outlined in paragraph 14, we consider the Council to be the responsible organisation for the social care funded part of Mr A’s placement at Dignus, and Dignus (as an NHS provider) responsible for the NHS-funded part of his placement.
91. Dignus has agreed to take the actions below, in liaison with the Council, to remedy the injustice caused to Mr and Mrs K by its faults. Within one month of this decision, Dignus will:
1. Write to Mr and Mrs K to apologise for the impact on them of the faults I have identified in relation to destruction of care records and poor complaint handling
2. Explain what action it has and will take to learn from the failings highlighted in this decision, to improve its services and to prevent a recurrence of these problems
3. Pay Mr and Mrs K £350 to recognise the prolonged inconvenience, distress and frustration they have experienced
4. Pay £250 to a charity for people living with diabetes

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Final decision

92. I have found fault by Dignus which caused Mr and Mrs K avoidable inconvenience, distress and frustration. Dignus has agreed to take action, in liaison with the Council, to remedy this injustice. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman