The Ombudsman's final decision:
Summary: The Ombudsmen find fault in an independent investigation the Council commissioned. It was not properly multi‑disciplinary and failed to provide a comprehensive response. The Council has agreed to commission a new investigation, to properly include and consider all the relevant health organisations.
- Dr G’s and Mrs R’s complaint relates to the care of their late brother, Mr D, between December 2015 and July 2016. Dr G and Mrs R complain about the actions of:
- Hertfordshire County Council (the Council)
- East and North Hertfordshire NHS Trust (the Acute Trust), which manages Lister Hospital
- Hertfordshire Community NHS Trust (the Community Trust), which manages Queen Victoria Memorial Hospital
- Regal Chambers Surgery, which was Mr D’s regular GP when he lived at home
- The Baldock Surgery, which was Mr D’s GP after he moved to a care home.
- Dr G and Mrs R complain the health and social care organisations involved in Mr D’s care failed to address his rehabilitation and ongoing health and care needs or act in his best interests. They complain that, as a direct consequence, this led to ‘a miserable and undignified life, in considerable pain and discomfort, in a home for people with dementia and to his eventual death’.
- Dr G and Mrs R consider Mr D’s death was a result of organisational neglect. They would like there to be a multi-agency Safeguarding Adults Review (SAR). Dr G and Mrs R said, without this, lessons will not be learned and other people with learning disabilities will suffer unnecessarily. Dr G and Mrs R complain the complaint investigation the Council arranged, instead of an SAR, was inadequate.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
- 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 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)
How I considered this complaint
- I read the papers Dr G and Mrs R submitted to the Ombudsmen along with papers from the organisations. I considered relevant legislation and guidance.
- I shared a confidential draft decision with Dr G and Mrs R and each of the organisations under investigation. I invited their comments on the draft and considered those I received.
What I found
- Mr D had a learning disability following a birth injury. This left him unable to read or write and with a speech impediment. Mr D was physically mobile. In 2015 he was in his late 60s and lived on his own in a bungalow with support from carers and a local day centre.
- In late December 2015 Mr D became unwell and went into hospital. Doctors concluded he had a long‑term bowel condition. During Mr D’s stay in hospital he became doubly incontinent and his ability to move around on his own declined. He needed a walking aid and help from nurses to move about the ward. Professionals from physiotherapy and occupational therapy worked with him to try to improve this.
- By the middle of January 2016 hospital staff felt Mr D did not need to stay in an acute hospital any longer. Professionals decided that when Mr D left hospital he should have a short rehabilitation placement before he went home. Mr D transferred to a rehabilitation placement in early February 2016. He stayed there for two weeks and returned home toward the end of February 2016. The Council restarted his support package.
- Mr D had several falls at home. Staff from the Council had concerns that he was not moving around his bungalow and was not sleeping in his bed. The Council arranged a two-week respite placement in a local residential home (the Home). Mr D moved into the Home in the middle of March 2016.
- Dr G and Mrs R told professionals they did not think the Home was right for Mr D, and they felt there needed to be further efforts to help him regain his previous mobility and independence. Dr G and Mrs R said they were worried about Mr D becoming institutionalised in the Home. They queried whether he could have another stay in a rehabilitation centre, or if he could move to a different care home, possibly nearer to his family.
- When Mr D’s two-week respite stay came to an end he remained in the Home. Staff from the Home said they felt it would be unsafe for him to return to his bungalow.
- Dr G and Mrs R continued to voice their concerns about the unsuitability of the Home, and continued to ask for physiotherapy. Mr D remained in the Home, without physiotherapy.
- In late June 2016 (close to three months after the initial two-week respite period ended) an independent advocate visited Mr D to find out where he wanted to live. They gave the Council a report at the end of the month which said Mr D did not want to live in the Home and wanted to move home or move closer to his family.
- In the middle of July 2016 a private physiotherapist assessed Mr D. The Council paid for this. The physiotherapist had concerns about Mr D’s neck and asked a GP to review him. (In their complaint to the Ombudsmen Dr G and Mrs R said Mr D had an inadequate chair while in the Home. They said this meant Mr D lost muscle strength in his neck and could no longer hold up his head which then collapsed onto his chest.)
- A couple of days later an out of hours GP diagnosed Mr D as suffering from a chest infection. They prescribed an antibiotic, and Mr D’s GP changed this to a different antibiotic five days later. Two days later Mr D’s health got worse. An ambulance took him to hospital where he was diagnosed with community acquired pneumonia and an acute kidney injury. He also needed a blood transfusion for anaemia. Mr D sadly died a week later.
- Dr G and Mrs R asked the Council to conduct an SAR. The local safeguarding board declined on the basis that Mr D’s death was not a consequence of abuse or neglect. However, the Chair of the safeguarding board said they would welcome an independent review.
- The Council arranged an independent investigation of Dr G and Mrs R’s complaint. This involved the Council, the Acute Trust and the Community Trust. The Council then provided an adjudication on the independent investigation, but the Acute Trust and Community Trust did not. NHS England provided a separate response to Dr G’s and Mrs R’s concerns about two GP practices.
Dr G’s and Mrs R’s reasons for requesting an SAR
- Dr G and Mrs R have presented a clear account of why they feel Mr D’s death was premature and avoidable. In brief, they complain:
- Mr D did not receive enough support from the Acute Trust, Community Trust and Council to help him regain the independence he enjoyed before he went into hospital, or to address his ongoing incontinence and reduced mobility,
- The Council did not respond to Mr D’s changed needs when he returned home and no one referred him to appropriate community health services (including continence services), and this meant he did not have enough support to safely live at home on his own or improve his health,
- The Council then effectively placed Mr D in an inappropriate care home on a long‑term basis without helping him to make an informed choice on the matter,
- The new environment had a detrimental impact on Mr D’s emotional wellbeing which, in turn, impeded his physical recovery,
- Mr D’s recovery was further compromised by a lack of physiotherapy or adequate equipment (in particular, an adequate chair),
- Mr D spent all day in the inadequate chair and staff did not take appropriate action to relieve his pressure areas, leading to the development of avoidable and painful pressure sores,
- The inadequate chair and lack of therapy, on top of Mr D’s diminished health, meant he lost muscle strength in his neck and could no longer hold up his head which then collapsed onto his chest,
- This, in turn, caused Mr D to develop pneumonia,
- Regal Chambers Surgery removed Mr D from its list and did not respond to requests for help, despite having been his GP for a long time and knowing him well,
- GPs from the Baldock Surgery did not respond adequately to the pneumonia,
- The pneumonia ultimately killed Mr D.
- Dr G and Mrs R consider this demonstrates organisational neglect across the range of organisations involved in Mr D’s care.
Significance of Mr D’s learning disability
- At the centre of Dr G’s and Mrs R’s complaint is a concern that Mr D did not get enough help to overcome the barriers his learning disability placed in his way. Their expectations about how professionals should have helped Mr D are legitimate ones, supported in law and guidance:
- When supporting people with a learning disability professionals should aim to do all they can to promote and assist independence. They should also do all they can to ensure the person is able to make their own choices (Paragraph 2.2 of Valuing People: A New Strategy for Learning Disability for the 21st Century and paragraph 11 of Valuing People Now: a new three-year strategy for people with learning disabilities).
- This is in line with a wider expectation that professionals should start by presuming the person has the mental capacity to make their own choices (Section 1(2) of the Mental Capacity Act 2005 and Paragraphs 2.3 to 2.5 of the Mental Capacity Act Code of Practice). They should also take ‘all practical steps’ to help the person to make a specific decision (Section 1(3) of the Mental Capacity Act 2005). To do this, professionals are expected to adjust their approach to reflect the significance of the decision, with an acknowledgement that ‘Significant, one-off decisions (such as moving house) will require different considerations from day-to-day decisions’ (Paragraph 3.3 of the Mental Capacity Act Code of Practice). There is detailed guidance about the things professionals should consider (Chapter 3 of the Mental Capacity Act Code of Practice), and this includes a ‘scenario’ about helping a person with a learning disability to choose a different care home (on page 38 of the Mental Capacity Act Code of Practice).
- Also relevant is the duty of public bodies to ‘have regard to’ the need to promote equality of opportunity between disabled people and other people (Section 149 of the Equality Act 2010). Public bodies need to make reasonable adjustments for people who would be at a substantial disadvantage, in relation to a relevant matter, in comparison with persons who are not disabled (Section 20 of the Equality Act 2010).
- This duty applies when councils are assessing a person’s needs (Section 6.87 of the Care and Support Statutory Guidance). When councils assess people they should put the person at the heart of the assessment process. Councils should also consider the need to tailor the assessment process to the person’s needs. If a person cannot engage effectively on their own councils should try to involve someone who can help them voice their views (Paragraphs 6.30 to 6.34 of the Care and Support Statutory Guidance).
- The lives of people with learning disabilities often involve support from more than one organisation. There is duty for councils and health organisations to work together and provide integrated care:
- Councils need to carry out their duties with the aim of ensuring greater integration with the NHS and other partners, and they must cooperate with each other (Sections 3 and 6 of the Care Act 2014; and Paragraphs 15.2 to 15.4 of the Care and Support Statutory Guidance). Cooperation between agencies ‘should be a general principle’ (Paragraph 15.16 of the Care and Support Statutory Guidance). In order to plan how to meet a person’s needs councils ‘and their partners must focus on joining up around an individual, making the person the starting point for planning, rather than what services are provided by what particular agency’ (Paragraph 1.22 of the Care and Support Statutory Guidance).
- ‘lives of people with learning disabilities often involve a complex array of service provision with multiple care and support staff. If we are to improve service provision for people with learning disabilities and their families, and reduce premature deaths, we need to look wider than NHS-related circumstances leading to a person’s death, in order to identify the wider range of potentially avoidable contributory factors to their death. A cross-sector approach to reviewing deaths of people with learning disabilities is imperative; one that includes families, primary and secondary healthcare, and social and third sector care providers. Such a balanced approach across acute and other settings is needed from the outset of a review process, in order to accurately determine if there are any concerns about the death, or to identify examples of best practice that could lead to service improvement’ (Appendix D, paragraph 3 of the National Guidance on Learning from Deaths).
- ‘There is unequivocal evidence that demands additional scrutiny be placed on the deaths of people with learning disabilities across all settings’ (Appendix D, paragraph 4 of the National Guidance on Learning from Deaths).
- Organisations are encouraged to work together to complete one single investigation wherever possible and appropriate (Appendix H of the National Guidance on Learning from Deaths).
Guidance about Safeguarding Reviews
- Abuse and neglect can take many forms, including organisational abuse. This can include poor care practice within a variety of settings. This, in turn, may be as a result of the structure, policies, processes and practices within an organisation (Paragraph 14.17 of the Care and Support Statutory Guidance).
- There are situations where SARs need to be completed. Safeguarding boards also have the discretion to complete Multi Agency Safeguarding Incident Reviews (MASIRs) if they do not need to complete an SAR:
- Safeguarding Adults Boards (SABs) must arrange an SAR when:
- ‘There is reasonable cause for concern about how the SAB, members of it or other persons with relevant functions worked together to safeguard the adult’ and
- The adult has died and ‘the SAB knows or suspects that the death resulted from abuse or neglect (whether or not it knew about or suspected the abuse or neglect before the adult died)’ (Section 44 of the Care Act 2014).
- The Hertfordshire Safeguarding Adults Board has its own SAR Protocol (the Protocol) to help people to decide when to conduct an SAR. This notes that, when the criteria for an SAR is not met, it will consider carrying out a MASIR if a review of a death could ‘provide useful insights into the way organisations are working together to prevent and reduce abuse and neglect of adults who are at risk of, or experiencing, abuse and neglect’ (Section 1.1.3 of the Protocol).
The request for an SAR and the response
- Dr G and Mrs R asked for an SAR at the end of August 2016. The Council offered only a brief explanation of why it would not conduct an SAR: it said Mr D’s death was not due to neglect or abuse.
Independent investigation comments on an SAR and the Council’s adjudication
- In the independent investigation (which I will turn to in more detail below) the investigator noted the Council had agreed to review its position of convening a serious case review on completion of their investigation (Section 11.1 of the Independent Investigation). The investigator also said he would support the complainants’ request for ‘a detailed response as to how the decision was reached that [Mr D] did not reach the criteria for a SAR or MASIR as the subgroup was convened without information from Lister Hospital and Queen Victoria Memorial Hospital’. In addition, the investigator said the Council should provide a clear reason why it would not share the minutes of the SAB subgroup panel minutes with the complainants (Sections 11.10 and 11.11 of the Independent Investigation).
- In its adjudication letter the Council said it had considered again whether to conduct an SAR. It said ‘The information presented at the time of writing the report was that [Mr D’s] death was not linked to neglect or abuse’.
- This final response from the Council does not meet the independent investigator’s suggestion for a detailed explanation of the decision. This is fault.
Independent investigation of the complaint
- Regardless of the decision not to undertake an SAR or MASIR, there was an independent investigation. This was meant to be a thorough, multi-disciplinary review of Dr G and Mrs R’s concerns. However, for the reasons I will now come to, this investigation was inadequate.
The scope of the investigation
- After correspondence between the investigator and complainants from November 2016 to January 2017, the investigator ended up with a list of 101 heads of complaint. There was some repetition and overlap in this list of issues, and the number of issues made the investigation unwieldy and unfocused.
- Outside of SARs, MASIRs and learning reviews, the regulations on complaint handling are clear that organisations must cooperate when investigating complaints about more than one organisation. This includes duties to: decide who will lead the process; share relevant information; and, provide the complainant with a coordinated response (Regulation 9 of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009).
- This necessary cooperation did not happen in a meaningful or helpful way in this case. On the surface, the Council-commissioned investigation looked at the Council, the Acute Trust and the Community Trust. However, the investigator did not have access to any health records (as noted, for example, in sections 10.10.3, 10.13.2 and 10.13.3 of the Independent Investigation). Instead, the investigator was asked to rely upon the submissions of the two NHS organisations without being able to test them against the evidence.
- Further, the two Trusts were asked for their comments before the scope of the investigation had been agreed. The investigator himself described this as ‘a fundamental flaw’ (Section 10.13.7 of the Independent Investigation). The investigator noted that he asked the Council to send more information to one of the Trusts but the Council declined to (Section 10.13.1 of the Independent Investigation). The investigator also noted that ‘There was evidence missing or restrictively reported from all professional bodies which hindered the investigation process’ (Paragraph 4 of section 12 of the Independent Investigation).
- The two GP surgeries provided separate responses, via NHS England, and the independent investigator did not consider their involvement as part of the overall picture.
- One investigator should have looked at all the organisations, and should have had access to all the records. In relation to this, the investigator also commented that medical matters were beyond his professional remit (for example, in sections 10.1.8 and 10.11.3 of the Independent Investigation). As well as having access to all the relevant records, the investigation should also have had access to necessary professional advice.
- As well as this, the independent investigation contained very little about the way it measured the organisations actions. The Care Act 2014, Equality Act 2010 and Mental Capacity Act 2005 (and associated guidance) all contain relevant information to help understand should have happened in crucial aspects of Mr D’s care. This includes:
- whether enough was done to help Mr D make his own decisions or establish his best interests;
- whether his needs were adequately reviewed as they changed, and whether his care plan changed appropriately;
- whether there was sufficient communication and collaboration between all the professionals (for example, on an initial look it still seems uncertain what the correct process is for accessing physiotherapy in the community, and whether it was adequately followed in this case); and,
- whether reasonable adjustments were made throughout, to make sure that any barriers to Mr D’s participation were minimised.
- There was also little analysis of the impact of the failings and no clear information about how things were going to be put right for the family, or what would be done to prevent recurrences. The Council’s adjudication noted there were ‘some failings’ that needed to be addressed in regard to improving communication when several organisations are involved in a person’s care. It did not say what it would do to put things right. To my understanding the Trusts were not offered an opportunity to provide their own adjudications on the final report, and the two GP surgeries were not included in it.
- All things considered, I am not surprised Dr G and Mrs R were not satisfied or reassured by the investigation. Mr D had a right to make his own choices, and to expect all the organisations to work together to meet his needs. A proper multi‑agency investigation would have been a powerful way of finding out whether there were any shortcomings and, if so, why they happened. However, the investigation was flawed and inadequate and this is fault.
- The Council is responsible for this fault as it commissioned the independent investigation. As a result of this fault Dr G and Mrs R have been left without a thorough investigation of their complaint, and without clear, evidence based findings.
- I have made a recommendation to the Council to address this outstanding injustice, by looking at Dr G and Mrs R’s complaint again. In keeping with the expectations about joint working and learning, the Acute Trust, Community Trust and two GP surgeries should work with the Council in any new investigation.
- In relation to this, the Acute Trust and Community Trust have advised that its records are lost. The Acute Trust noted it sent its records to the Community Trust as part of the complaint process, but has no record of receiving them back. Both sets of records remain lost after efforts to locate them. This is fault and creates a significant obstacle to a comprehensive investigation. Nevertheless, I still consider it would be appropriate for the Acute and Community Trust to take part in a further investigation. They will still be able to provide information about policies, procedures and responsibilities. In addition, the responses they provided to the original investigation, alongside records from the other organisations, may be of some use in a more focused, comprehensive investigation.
- Within one month of the date of the final decision, the Council should provide a detailed explanation of why it decided not to carry out an SAR or MASIR.
- Within one month of the date of the final decision the Acute Trust and the Community Trust should both write to Dr G and Mrs R to explain (as far as is possible) how the records became lost. They should also detail the steps they have taken to find them, and the steps they have taken to appropriately report the loss. Further, both the Acute Trust and Community Trust should apologise for the loss of these records and for the impact this will have on future investigations.
- Within one month of the date of the final decision, the Council should arrange to begin a new independent investigation of Dr G and Mrs R’s complaint. This should be a multi-agency investigation, involving the Council, Acute Trust, Community Trust, Regal Chambers Surgery and the Baldock Surgery. It should focus on the key issues and the investigator should have appropriate support to be able to make informed findings about the clinical aspects of the case. All parties should be asked to respond to the completed investigation, to confirm whether they accept its findings and, if there are any failings, to confirm what steps they will take to address them.
- I have completed my investigation on the basis there was fault on the part of the Council which lead to an injustice. There was also fault on the part of the Acute Trust and Community Trust, as they have lost Mr D’s records for the period under review. The organisations should work together to provide a suitable investigation of Dr G and Mrs R’s complaint.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman