The Ombudsman's final decision:
Summary: The Ombudsmen found fault with the care provided to a woman with complex needs by several health and social care organisations. This included failure to arrange assessments and reviews, failures in transition planning and failure to make appropriate safeguarding referrals. This fault meant opportunities were missed to explore whether the woman had additional care needs. This also resulted in distress and uncertainty for her sister, who is pursuing the complaint on her behalf. The organisations concerned have agreed to take action to remedy the injustice to the complainants.
- The complainant, who I will call Ms X, is complaining about the care provided to her sister, Miss Y, between 2013 and 2016 by Surrey County Council (the Council), Devon Partnership NHS Trust (the Devon Trust), Pembroke Surgery (the Practice), Devon Clinical Commissioning Group (the CCG – formerly South Devon and Torbay Clinical Commissioning Group), Royal Devon and Exeter NHS Foundation Trust (the Royal Devon Trust) and Torbay and South Devon NHS Foundation Trust (the Torbay Trust).
- In summary, Ms X complains that:
- The Council failed to provide Miss Y with appropriate social care input between November 2013 and February 2015 and did not properly manage her transition from a Council-arranged residential placement (Placement 1) to a supported living placement (Placement 2).
- The Council completed an assessment in 2013 which recorded that Miss Y had Autistic traits. Ms X believes this should have led to a formal Autism assessment that would have resulted in a proper diagnosis.
- The Devon Trust’s Intensive Assessment and Treatment Team (IATT) failed to assess Miss Y for Autism. Ms X says this led to a misdiagnosis and meant Miss Y was prescribed inappropriate psychotropic medication.
- A GP from the Practice failed to properly investigate Miss Y’s diet and digestive health. Ms X says this resulted in Miss Y developing an impacted bowel, which in turn affected her behaviour.
- From summer 2014, and during the move to Placement 2, there was a collective failure to investigate and manage Miss Y’s escalating behaviours. Ms X says this failure resulted in Miss Y suffering a serious hip injury.
- Professionals used all-in-one suits (‘onesies’) to restrain Miss Y.
- Devon Trust clinicians failed to review or supervise Miss Y’s psychotropic medication during an eight-month hospital admission.
- A Devon Trust consultant told the Council in January 2016 that Miss Y’s diagnoses needed to be reviewed as he had only able to complete limited observations due to her increasing complex physical needs. Ms X says this review did not take place.
- The organisations have failed to respond to Ms X’s complaint properly and have delayed in doing so.
- In the interests of brevity, I have not set the complaint out in its entirety here. Rather, this intended as a brief summary of the complaint. However, I have addressed each point in more detail in the ‘analysis’ section below.
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 it has, they may suggest a remedy. This 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.
- 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 considered the information provided by Ms X and discussed the complaint with her. I sent the summary of complaint to the organisations involved and considered the documentation and comments they provided.
- I sought advice from a psychiatrist (our psychiatrist advisor) and GP (our GP advisor). I considered this advice, along with relevant law and guidance, before coming to a view.
- In addition, I considered comments from all parties on my draft decision statements.
What I found
Relevant guidance and legislation
- At the time of the events complained about, local authorities were required to review a new service user’s care plan once it commenced provision of community care services. Government guidance required the frequency of the on-going review to be “proportionate to the circumstances of the individual” It was regarded as good practice for a council to carry out a review within four to six weeks after the service started, and after that at least yearly. Local authorities were required to keep a written record of the review and share it with the service user.
- The National Institute for Health and Care Excellence (NICE) produces guidance for health and social care professionals entitled Autism spectrum disorder in adults: diagnosis and management (2012).
- Sections 1.2.3 and 1.2.4 deal with the assessment of Autism in adults with moderate or severe learning disabilities. The guidance lists a number of behaviours that may be suggestive of Autism in a person with moderate or severe learning disabilities. These include:
- difficulties in reciprocal social interaction
- lack of responsiveness to others
- little or no change in behaviour in response to different social situations
- limited social demonstration of empathy
- rigid routines and resistance to change
- marked repetitive activities, especially when under stress or expressing emotion.
- The guidance says that, if two or more of these behaviours are present, a comprehensive Autism assessment should be offered.
- The British National Formulary (BNF) sets out legal and professional guidelines for the use of medicines by NHS prescribers (including doctors, pharmacists, nurses and other healthcare professionals). It sets out important guidance on all aspects of giving medicines to patients, including information on doses; what to be careful of; when doctors should not prescribe them; and potential side effects.
- Section 42 of the Care Act 2014 says that a local authority must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
- The statutory guidance on the issue says that workers across a wide range of organisations need to be vigilant about adult safeguarding concerns. The guidance goes on to say that early information sharing is key and that if a professional has concerns about the adult’s welfare, they should share the information with the relevant local authority.
Mental Capacity Act
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- 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 done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
- Miss Y has complex physical and mental health needs. Her diagnoses include severe learning disabilities, Bipolar disorder (a mental disorder that causes periods of depression and abnormally elevated mood) and physical disabilities. She is unable to communicate verbally.
- Miss Y was living in a specialist residential placement (Placement 1) funded by the Council. However, plans were underway to close Placement 1 and replace it with supported living bungalows (Placement 2).
- In July 2013, the Council carried out a social care assessment for Miss Y as part of the transition process. This found Miss Y had “a profound learning disability with autistic traits.”
- In March 2015, a different care provider assumed responsibility for Placement 1.
- In June 2015, Placement 1 became Placement 2. Miss Y moved to a bungalow on the site.
- Placement 2 contacted Miss Y’s family in August 2015 to report that her behaviours were escalating, and that Miss Y may need to be detained under the Mental Health Act 1983 (the MHA).
- Miss Y was detained under the MHA in September 2015 following a Mental Health Act Assessment. She was initially under the care of the Devon Trust.
- However, clinicians found Miss Y had a broken hip and she was transferred to the care of the Royal Devon Trust for surgery.
- Miss Y was subsequently transferred to the Torbay Trust in February 2016, before being discharged to an out-of-area placement in April 2016.
Social care input
- Ms X complained there was a lack of social care input from the Council between November 2013 and February 2015. In particular, she said there was no transition plan in place to manage Miss Y’s transfer from Placement 1 to Placement 2.
- The social care assessment undertaken by the Council in 2013 found Miss Y had a severe learning disability “with autistic traits”. The assessment concluded Miss Y required assistance 24 hours a day with all activities of daily living. Staff at Placement 1 told the assessor Miss Y did not appear troubled by change. They felt the transition to supported living bungalows could be managed successfully if Miss Y was supported by staff she knew.
- In June 2014, the Council decided it would be in Miss Y’s best interests to move to a supported living bungalow once Placement 2 was complete. This was to enable her to remain with staff and residents she knew.
- The Council’s records show Miss Y’s social worker left the team around this time. The case was not allocated to another social worker until October 2014. However, the Council’s says its duty team was available to respond to queries about Miss Y’s care during this period.
- The Council has been unable to locate the care records relating to the majority of Miss Y’s time in Placement 1. As a result, documentation for this period is limited. However, there is nothing in the Council’s records to suggest staff at the placement were concerned about Miss Y or that an urgent review was required at that time. Indeed, the Devon Trust’s records suggest Miss Y was found to be “stable in mental health with good sleep and appetite” at a review in October 2014.
- However, a manager from Placement 1 contacted the Council in November 2014 to request a review of Miss Y’s care needs prior to her transition to Placement 2. The Council carried out its review in February 2015. The review noted Miss Y would need an updated assessment and support plan.
- I found no evidence to suggest the Council completed another assessment and support plan at that time. This should have been done prior to Miss Y’s move to the new living arrangements in Placement 2. This was fault by the Council.
- In its response to our enquiries, the Council said Miss Y’s transition had been carefully managed. It said “a series of assessments, including risk management assessments, and devised care plans” had been completed as part of this process. However, I found no evidence of these documents in the Council’s records or those of the service provider that assumed responsibility for Placement 1 (shortly before it became Placement 2) in March 2015.
- Placement 1 had produced a separate care plan for Miss Y in 2013 and this remained in place at the time of the transition to Placement 2. This care plan, while detailed, similarly contains no specific arrangements for Miss Y’s transition.
- The case records show Miss Y moved from Placement 1 to Placement 2 on 1 June 2015.
- The Council did not complete another assessment until 24 June 2015. Even then, there is very little difference between the assessment and the previous review of February 2015. Significantly, the assessment of June 2015 provided no information about how Miss Y was adapting to the new living and care arrangements.
- In summary, the evidence suggests there was a lack of detailed planning to support Miss Y’s transition to Placement 2. This is evidence of fault by the Council.
- I am unable to say with any certainty that a more carefully planned transition would have entirely prevented the subsequent deterioration in Miss Y’s behaviour. This is because the closure of Placement 1 meant the move, and therefore some degree of change, was inevitable.
- Nevertheless, I consider that, on balance of probabilities, the Council’s fault in this matter is likely to have contributed to Miss Y’s distress. The situation also caused uncertainty for Ms X as it is not now possible to establish whether a carefully planned transition might have prevented Miss Y’s subsequent deterioration.
- I am aware Ms X has further concerns about the Council’s failure to arrange an Autism assessment once the 2013 social care assessment had identified Miss Y had “autistic traits”. I have addressed this issue in the ‘diagnosis’ section below.
- Ms X complains that the Devon Trust’s Intensive Assessment and Treatment Team (IATT) knew Miss Y was Autistic but failed to communicate this to her family or staff at Placements 1 or 2. Ms X believes Miss Y should have had a formal Autism assessment. As a result, Ms X considers Miss Y’s needs were not properly assessed or met. Further, Ms X believes this failure to properly diagnose Miss Y led to her being prescribed inappropriate psychotropic medication. Ms X believes
- Miss Y had a long-standing diagnosis of Bipolar Disorder, for which she was receiving medication under the care of the Devon Trust.
- It is unclear from the available records exactly when Autism was identified as a potential diagnosis. However, as explained above, the Council’s review of Miss Y’s needs in August 2013 noted that she exhibited “autistic traits”. Indeed, Placement 1 asked the Council whether Miss Y had been formally assessed for Autism. Nevertheless, there is no indication that the Devon Trust initiated a formal assessment at that stage.
- In August 2015, a consultant from the IATT reviewed Miss Y due to her escalating behaviours. The consultant noted that Miss Y was in crisis and queried whether “this is a result of her previous labelled bipolar disorder (which I now felt to be unlikely) or whether this was in fact an autistic crisis which we had long suspected but could not confirm.” The consultant concluded that a diagnosis of Autism would be more in keeping with Miss Y’s long-term behavioural patterns. The consultant did not recommend a formal Autism assessment, however.
- The records show that, by 2013, professionals involved in Miss Y’s care were certainly aware of Autism as a possible diagnosis. In my view, this, along with Miss Y’s clinical history, should have prompted the Devon Trust to arrange a formal Autism assessment for Miss Y. That it did not do so is evidence of fault.
- I accept it would not have been practicable for the Devon Trust to arrange an Autism assessment for Miss Y following her admission to hospital in September 2015. This is because Miss Y’s physical health needs had by this point taken precedence due to her fractured hip.
- Nevertheless, this does not explain why the Devon Trust did not arrange an assessment at an earlier stage given professionals were aware of Autism as a possible diagnosis in 2013. This represented a missed opportunity to explore whether Miss Y required additional specialist support.
- I am unable to speculate what the outcome of this assessment would have been and, at the time of writing this final decision statement, Miss Y has still not received a formal diagnosis of Autism.
- However, I accept the Devon Trust’s fault in this matter caused further uncertainty for Ms X as to whether an earlier assessment would have significantly affected the outcome of Miss Y’s care.
- I understand Ms X to be strongly of the view that Miss Y’s diagnosis of Bipolar Disorder is incorrect and should be replaced with a diagnosis of Autism. On this basis, Ms X feels the Devon Trust’s decision to continue treating Miss Y with medication for her Bipolar Disorder was inappropriate.
- I have commented on the issue management of Miss Y’s medication in more detail in the ‘escalating behaviour’ section of this decision statement below. However, it is important to note that a diagnosis of Bipolar Disorder can exist alongside a diagnosis of Autism. Even if Miss Y had received a diagnosis of Autism at that time, it would not automatically follow that her diagnosis of Bipolar Disorder was incorrect, albeit I appreciate that diagnosis is currently under review.
- Ms X complained that, from summer 2014, there was a collective failure to investigate Miss Y’s escalating behaviours. Ms X says Placement 2 did not tell the family and the IATT about Miss Y’s deterioration, instead prescribing psychotropic medication. Ms X says this failure resulted in Miss Y suffering a serious hip injury. Ms X says Placement 2 also failed to make a safeguarding referral for Miss Y.
- As I have explained above, a clinical review undertaken by the Devon Trust in October 2014 found Miss Y’s condition to be stable. At that point, the Devon Trust discharged Miss Y from its service on the basis that she did not require psychiatric input at that time.
- However, in December 2014, the Devon Trust’s records note that Miss Y “has become more animated, sleep pattern disrupted and has lost weight”. Staff at Placement 1 were concerned this was a result of a recent change to her medication. It was noted that an IATT consultant would need to review her medication.
- I was unable to locate a copy of this review, but the Council’s records include an email from the manager of Placement 1 in February 2015. In this email, the manager explained that Miss Y’s medication had been reviewed by a consultant from the IATT and that she had made no changes. The email also made clear that Miss Y continued to experience disrupted sleep.
- On 9 April 2015, Placement 1 contacted the Practice to request a further prescription for Zopiclone (a drug used to treat insomnia) for Miss Y. Placement 1 informed the Practice that Miss Y “is not sleeping at all”.
- Later that month, following further discussions with Placement 1, a GP from the Practice prescribed Clonazepam (an alternative tranquilizer). This was on the basis that Miss Y continued to experience agitation at night and that the Zopiclone medication had been ineffective. The GP subsequently increased the medication dosage.
- On 3 June 2015, a manager from the placement (by then Placement 2) contacted the Practice again to report that Miss Y “is portraying very bad behaviour, up all night”. As a result, the GP prescribed Risperidone (an antipsychotic medication) to treat Miss Y’s manic symptoms.
- A GP from the Practice discussed Miss Y’s care with the IATT on 15 June 2015. He was advised to make a referral.
- The Devon Trust’s records show it accepted the referral on 24 June 2015. A member of the IATT contacted Placement 2 the following day. It was noted that Miss Y was more settled in mood and had enjoyed improved sleep the previous night. However, Placement 2 reported that Miss Y had developed a leaning gait and was shuffling her feet when walking.
- The IATT officer also spoke to staff from the day centre Miss Y was attending at the time. He noted staff concerns about Miss Y’s “change to mood and physical appearance. They report that [Miss Y] appears to be using her left arm less and that her body leans to the left…on one occasion last week her mood rapidly changed to highly elevated”.
- On 29 June 2015, Placement 2 contacted the IATT. Staff were concerned that Miss Y was not sleeping. The IATT staff member suggested Placement 2 observe Miss Y for one more night and refer her to her GP if her sleep continued to deteriorate. Miss Y’s sleep appears to have improved slightly, but by 2 July 2015 it had deteriorated again. A note from the IATT’s records show staff proposed to move Miss Y to a quieter, darker room. The IATT arranged for a consultant to review Miss Y on 14 July 2015.
- This review found Miss Y’s gait was improving and that she was not leaning or shuffling as much. The consultant concluded Miss Y “shows no evidence of distress”. Nevertheless, the consultant also recorded that “[s]leep remains erratic but will sleep through the night occasionally.”
- On 28 July 2015, the IATT consultant wrote to Miss Y’s GP. The letter explained Miss Y had improved recently following a move to a new room. The consultant concluded Miss Y may have suffered a mini stroke, leading to her altered gait and increased agitation.
- Placement 2 contacted the IATT again on 10 August 2015 to discuss Miss Y’s care. A manager from the placement reported that Miss Y’s “behaviours are highly erratic, unable to settle, she has a distressed look and an increased appetite” but said her sleep pattern had improved. The following day, an IATT officer also spoke to the day centre. He noted Miss Y “continues to present as highly agitated, unable to settle or calm.”
- On 17 August 2015, a manager from Placement 2 contacted the IATT team again to report that Miss Y’s behaviour had deteriorated following a reduction in her Risperidone medication and that she had barged another resident, leading to that resident being admitted to hospital.
- This led an IATT consultant to visit Miss Y on 19 August 2015. The consultant noted Miss Y was experiencing a hypomanic episode. This led the consultant to stop Miss Y’s Risperidone medication and commence her on Olanzapine (an alternative antipsychotic medication).
- This appears to have had little effect and a manager from Placement 2 contacted the IATT the following day to advise that the placement “simply cannot cope with [Miss Y’s] behaviour as there are serious concerns for [Miss Y] and the other residents’ safety.”
- The Placement 2 manager also contacted the Practice, reporting “Patient’s condition worsened – manic, has already injured another resident who had to go to hospital, is stripping staff’s clothes off”.
- By 24 August 2015, the Devon Trust’s notes record that Miss Y was “covered in bruises and has a swollen hand” and had damaged fittings in her room.
- On 24 August 2015, a new consultant from the IATT reviewed Miss Y. He wrote to the Practice to express the view that Miss Y’s care package was approaching crisis point. He suggested Miss Y’s escalating behaviour may be an “autistic crisis”.
- Miss Y was eventually detained under section on 25 September 2015, when she was admitted to the Devon Trust’s Additional Support Unit (ASU).
- The clinical records appear to show that Miss Y’s condition began to deteriorate in December 2014 when she was noted to be suffering disturbed sleep. The situation escalated in early June 2015 following Miss Y’s move to Placement 2, when she was noted to be exhibiting increasingly manic behaviour. In my view, this represents a pattern of deterioration.
- The records show Placement 1 and, later, Placement 2 remained in contact with the Practice and Devon Trust throughout this period, seeking appropriate clinical input when Miss Y’s presentation changed.
- In addition, the clinical records show the Practice was responsive to requests for assistance from Miss Y’s placement, making adjustments to her medication based on her diagnosis as it stood at the time and referring her to the IATT when her condition did not improve.
- It is important to note that, in early 2015, Miss Y still had a primary diagnosis of Bipolar Disorder. In this clinical context, it was appropriate for the Devon Trust (and Practice) to provide care based on this diagnosis initially. This primarily involved adjustments to Miss Y’s medication. Miss Y’s medication dosages were in line with the BNF guidelines for mania and insomnia, and therefore represented good clinical care and treatment.
- By early August 2015 though, the evidence strongly suggests that strategies to manage Miss Y’s escalating behaviours through medication were proving ineffective. In my view, the Devon Trust should have explored other possible causes for Miss Y’s symptoms at this stage.
- I have explained above why, in my view, the Devon Trust should have arranged an Autism assessment for Miss Y. It was also open to the Devon Trust to seek an urgent second opinion with regards to Miss Y’s care. However, it did not do so and Miss Y’s condition continued to deteriorate until she was sectioned. This is evidence of fault by the Devon Trust.
- Again, it is not possible to say whether a different approach would have resulted in a different outcome or prevented Miss Y’s deterioration. Nevertheless, this represented a missed opportunity to explore other possible interventions. This caused uncertainty and distress for Ms X.
- However, I cannot link the Devon Trust’s fault in this matter to Miss Y’s hip injury. This is because the circumstances in which she suffered this injury remain unclear, despite having been the subject of a safeguarding enquiry by another local authority.
- It is of concern that Placement 2 (on behalf of the Council), the Practice and the Devon Trust all failed to report Miss Y’s behaviours as a safeguarding concern in August 2015.
- The records of each organisation reveal concerns about Miss Y’s behaviour and the risk she posed to herself and others. On 24 August 2015, the Practice’s records reveal that Miss Y had been “throwing herself around for 10 days”. It should be noted Miss Y had already injured another resident by this point. On 27 August 2015, a Devon Trust review found Miss Y’s “[a]nkle remains slightly swollen and lots of yellow bruising to legs.” This evidence should have prompted a safeguarding referral. This is fault by the Council, Devon Trust and Practice.
- This meant an opportunity was missed to take earlier action to reduce the risk to Miss Y. This also caused Ms X additional uncertainty.
Diet and digestive health
- Ms X complains that the Practice did not properly investigate Miss Y’s diet or digestive health. Ms X says this caused Miss Y’s bowel to become impacted and contributed to her distress and deteriorating behaviour. Ms X feels the Practice should have arranged tests to determine whether Miss Y was intolerant to gluten.
- There are significant differences between Coeliac disease, gluten allergy and gluten intolerance.
- Coeliac disease is an autoimmune condition (where the immune system attacks the body). Blood testing for Coeliac disease is available through the NHS.
- A person with a gluten allergy is likely to experience an acute reaction to gluten resulting in almost immediate symptoms (such as itching, sneezing and wheezing). It is possible to test for allergies through the NHS.
- A person with gluten intolerance can also experience abdominal symptoms (such as bloating, cramps and diarrhoea), though the onset of these symptoms is generally slower. There is no diagnostic test for gluten intolerance, though it is possible to trial a gluten-free diet to see if this relieves any symptoms.
- The clinical records show Miss Y had a long-standing history of constipation and was regularly treated with laxative medication.
- The Practice’s records show Ms X first contacted Miss Y’s GP in June 2014 to request allergy testing for her. The GP declined to arrange tests on the basis that Miss Y did not have any symptoms that were suggestive of an allergy. The GP recorded that he felt any allergy test (such as blood tests or skin pricks) would be likely to cause Miss Y unnecessary distress.
- The distinction between a gluten allergy and gluten intolerance is significant here. I share the Practice’s view that Miss Y had no symptoms that would have suggested a gluten allergy. On this basis, a test was not indicated. I find no fault by the Practice in this regard.
- It seems Ms X was actually querying whether Miss Y was gluten intolerant (rather than whether she had a gluten allergy), though this is not reflected in the records. On balance, I consider it likely this was attributable to confusion around the use of the terms ‘intolerance’ and ‘allergy’.
- It would have been challenging to identify whether Miss Y was gluten intolerant. This is because she was unable to communicate verbally and so would have been unable to provide clinicians with specific information about any symptoms she was experiencing.
- The Practice’s records show it prescribed laxative medication for Miss Y in November 2014. Neither Placement 1 nor Placement 2 contacted the Practice with concerns about Miss Y’s bowel symptoms or to request additional laxative medication from this point to Miss Y’s admission to hospital in September 2015.
- I also note the Practice arranged for a dietician to review Miss Y in May, June, and December 2014. The evidence suggests the dietician had no concerns about Miss Y’s diet at that time and made no recommendations to change it.
- On this basis, while it is not possible to entirely exclude gluten intolerance as a potential cause of Miss Y’s long-term constipation, I am satisfied there were no strong indications for introducing a gluten free diet during this period. I find no fault by the Practice in this matter.
- Ms X says that, since Miss Y has been placed on a strict elimination diet, her bowel symptoms have improved considerably.
- I note Ms X’s comments in this regard. However, it is important to note that a strict elimination diet also excludes a number of other substances (such as refined sugar, caffeine, lactose and artificial additives). It is not possible to determine whether Miss Y’s improvement is specifically linked to the removal of gluten from her diet, therefore.
- In my view, the Practice did miss an opportunity to carry out a physical health check for Miss Y when her condition deteriorated in mid-2015 and clinicians were discussing changes to her medication.
- The National Institute for Health and Care Excellence (NICE) publishes guidelines for clinicians entitled Challenging behaviour and learning disabilities: prevention and interventions for people with learning disabilities whose behaviour challenges [NG11]. These guidelines emphasise the importance of taking into account any underlying physical and mental health problems when assessing challenging behaviour in a patient with learning disabilities.
- By June 2015, there was a pattern of escalating behaviours in Miss Y’s case. This should have prompted the Practice to undertake a physical health check to determine whether there was an underlying physical cause (such as constipation or impaction) for Miss Y’s escalating behaviour. The failure to do so is evidence of fault by the Practice.
- It is difficult to determine whether this omission had a significant impact on Miss Y’s care. This is because it is unclear from the clinical records when Miss Y’s bowel became impacted. This in turn makes it unclear whether constipation or impaction was a contributing factor to Miss Y’s distressed behaviours.
- The care records for Placement 2 suggest Miss Y was having regular bowel movements from June 2015 to her admission to hospital in September 2015. Placement 2 also reported that Miss Y’s appetite remained good throughout this period.
- A clinician from the Devon Trust’s ASU reviewed Miss Y on 28 September 2015, shortly after her admission. This brief examination found Miss Y’s abdomen to be soft and non-tender with normal bowel sounds. Again, the food and fluid intake charts seem to show that Miss Y’s food intake was good throughout the following weeks, although her fluid intake remained variable.
- Nevertheless, when Miss Y transferred to the care of the Royal Devon Trust on 21 October 2015 for an X-ray, she was found to have “[m]arked distal faecal loading with rectal impaction”. The Royal Devon Trust treated Miss Y with enemas and regular laxatives.
- The Royal Devon Trust’s discharge summary of 27 October 2015 described Miss Y as being “slightly faecally loaded on her admission X-ray”.
- In summary, neither the records of Placement 2 in the months leading up to Miss Y’s sectioning, nor those of the Devon Trust during Miss Y’s time in the ASU suggest she was experiencing significant constipation or impaction. Based on these records, I cannot say with any certainty when Miss Y developed faecal loading. In my view, it is most likely this happened during Miss Y’s final weeks in Placement 2 or following her admission to the ASU.
- Taken as a whole, the care records for the period June to September 2015 suggest Miss Y’s move from Placement 1 to Placement 2 was the primary contributory factor in her escalating distress and behaviours. There is no persuasive evidence to suggest Miss Y’s long-term bowel problems were of concern during this period. On this basis, I am not persuaded the Practice’s failure to carry out a physical health check had a significant impact on Miss Y’s care.
- Ms X is concerned about the use of all-in-one suits (‘onesies’) to restrain Miss Y. Ms X says she only discovered the use of onesies when Miss Y was detained in hospital.
- Miss Y has a history of rectal digging and is sometimes prone to smearing or eating her faeces. At the time of her transfer to Placement 2, Miss Y’s care plan allowed for the use of onesie suits in the evening. This was to prevent her smearing or consuming faeces during the night when not supported by carers.
- The evidence provided by Placement 2 suggests professionals involved in Miss Y’s care had used onesie suits for her since the 1990s and was reviewed on an annual basis.
- On 28 September 2015, following Miss Y’s detention under section, the Devon Trust carried out a mental capacity assessment. The assessment considered whether Miss Y could make a decision about using a onesie to prevent rectal digging and faecal smearing. The assessment concluded she did not have capacity in this regard.
- The Devon Trust held a best interests meeting later that day, which Ms X attended. The notes of the meeting suggest Ms X was understandably concerned that Miss Y should be prevented from consuming her faeces. The professionals present at the meeting took the view that there were significant health risks, both for Miss Y and other patients on the ward, if she continued these behaviours.
- The meeting agreed using onesie suits was the best option, considering the health risks. However, it was also agreed that staff would develop a care plan setting out how the suits would be used, along with strategies to address the behaviours themselves. The use of onesies was to be reviewed fortnightly. The resulting inpatient care plan recorded that Miss Y would wear a onesie at night to minimise the risk of her faecal smearing.
- I note Placement 2’s view that onesie suits had been in use for Miss Y since the 1990s and subject to multidisciplinary review over many years. Nevertheless, it remains my view that Placement 2 should have completed a new mental capacity assessment in accordance with the provisions of the MCA to reflect Miss Y’s recent change of circumstances. This would have allowed for a fresh decision to be taken on whether use of the onesie suits was in Miss Y’s best interests. This is fault by Placement 2 (on behalf of the Council).
- However, I am satisfied this did not result in an injustice to Miss Y. This is because, when the Devon Trust completed a capacity assessment in September 2015, professionals agreed it would be in Miss Y’s best interests to continue with the use of onesies in the evening.
- I note Ms X’s contention that she sometimes visited Miss Y at Placement 2 during the day to find her in a onesie.
- The records of Placement 2 (including Miss Y’s care plan) make clear that she was to be dressed as normal during the day, with a onesie only used during the night.
- I note Ms X’s contention that she sometimes visited Miss Y at Placement 2 during the day to find her in a onesie.
- I found no evidence in the limited records that would allow me to clarify how often this occurred. Nevertheless, while I accept this clothing was restrictive, it remains my view that the use of onesies was in Miss Y’s best interests.
- Miss Y remained in hospital for eight months. During this time, Ms X says clinicians failed to review or properly supervise Miss Y’s psychotropic medication. Ms X says a consultant identified the need to review Miss Y’s diagnosis in January 2016, but this review has still not taken place.
- On 8 October 2015, while Miss Y was an inpatient on the ASU, the Devon Trust arranged a progress meeting to discuss her care. A consultant noted that Miss Y was taking Carbamazepine (a drug used to treat epilepsy or as a mood stabiliser). As Carbamazepine can reduce the effectiveness of other medication, the consultant decided to gradually reduce this medication to see if the effectiveness of Miss Y’s other medications increased.
- As I have previously explained, Bipolar Disorder remained Miss Y’s primary diagnosis at this stage. The treatment provided by the Devon Trust for this condition, along with the decision to reduce Carbamazepine, was in keeping with good clinical care. I find no fault here, therefore.
- Miss Y was discharged back to the care of the Devon Trust on 29 October 2015, following hip replacement surgery. However, as Miss Y remained in pain, she was transferred back to the Royal Devon Trust on 1 November 2015. Further investigations identified she had dislocated the injured hip.
- On 16 November 2015, a Devon Trust consultant discussed reducing Miss Y’s medication with Ms X. He explained that a reduction in Miss Y’s psychotropic medication was not advisable at that time. The consultant explained that this could potentially cause confusion as to whether any subsequent distress displayed by Miss Y would be a result of her ongoing hip problems or the reduction in medication. In my view, this approach was reasonable and in keeping with good clinical care.
- The Devon Trust’s records show a consultant planned to review Miss Y’s medication in February 2016. This did not go ahead due to an outbreak of Norovirus at the hospital. Miss Y was transferred to the care of the Torbay Trust on 22 February 2016 before the review could be rescheduled. At this point, responsibility for monitoring Miss Y’s medication passed to a local community consultant (also acting on behalf of the Devon Trust).
- The new consultant visited Miss Y on 11 March 2016. He concluded it would not be appropriate to change Miss Y’s medication until she her condition had been stable for six to nine months.
- Miss Y was discharged to a placement in Cornwall on 22 April 2016.
- NHS England has issued principles: ‘Stopping Over-Medication of People with a Learning Disability, Autism or Both’ (STOMP). STOMP’s goal is to reduce the potential harm of psychotropic drugs. STOMP says an individual should be reviewed to find out when and why each drug was started. STOMP also recommends achieving a consensus among carers, family and the individual about whether there is scope for reduction or stopping psychotropic drugs. Finally, STOMP says, where making decisions for someone who lacks capacity, practitioners should be able to explain and record how they have considered issues of mental capacity and acting in the individual’s best interests.
- While the decision, in November 2015, not to reduce Miss Y’s medication while her hip was healing was reasonable, this decision and similar decisions taken after this point should have been made on the basis of full medication reviews.
- I found no evidence of a medication review in the Devon Trust’s records for the period from October 2015 to Miss Y’s discharge in April 2016. This is fault.
- This meant an opportunity was missed to review Miss Y’s medication in the context of her presentation, potential differential diagnoses (such as Autism) and any other underlying physical or mental factors.
- However, I note here the view of the Devon Trust consultant who eventually reviewed Miss Y in March 2016 that it would not be appropriate to change her medication until her condition had been stable for several months.
- Furthermore, Miss Y remained in hospital for treatment for her injured hip during this period. This is relevant in my view as a standard acute care hospital would not necessarily have been well equipped to cope with any escalation in behaviours caused by adjustments to Miss Y’s medication.
- With these factors in mind, it is not possible to say, even on balance of probabilities, whether more frequent reviews would have led to a change in Miss Y’s medication or diagnosis during this period. Nevertheless, I recognise the lack of reviews caused further uncertainty for Ms X.
- Ms X complains that the organisations involved in Miss Y’s care failed to respond to her complaints properly and delayed in doing so.
- Ms X wrote to the Council on 10 January 2017 to formally complain. She reiterated that Miss Y needed a formal Autism assessment. Ms X explained Miss Y was unhappy in her placement and required a care package to meet her needs. She expressed concern about Miss Y’s Bipolar diagnosis.
- On 16 January 2017, the Council forwarded the complaint to the organisations involved in Miss Y’s care and copied Ms X into the email. It explained it did not intend to coordinate a single response as the complaint was ‘‘very large’’. Ms X replied explaining she would prefer a joint response.
- The Council replied on 21 March 2017. It explained it was not the responsible body for diagnosing Autism. It said it had liaised with mental health services in providing for Miss Y’s care needs. The Council accepted it was required to assess social care needs and the assessment should do this giving consideration to Autism. The response referred Ms X to the CCG which arranged the pathway for Autism diagnosis. The Council reassured Ms X it had not made decisions about Miss Y’s care based on funding.
- The Council accepted there was no evidence of a transitional care plan. However, it referred to the review in February 2013 and emails and meetings following this with Ms X which indicated she was satisfied with the proposed arrangements. Finally, the response invited Ms X to complain to the Ombudsmen.
- I do not consider there is evidence of undue delay in the Council’s responses to Ms X’s complaint. There is evidence of fault in failing to arrange a coordinated response, however.
- The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the Regulations) places a duty on health and social care organisations to investigate complaints properly and in a way that will resolve them efficiently. There is also a duty to cooperate when a complaint is made to one organisation and contains material relevant to the other.
- Section 9 of the Regulations states that, in these circumstances, the responsible bodies must co-operate in handling the complaint. This includes duties to establish who will lead the process, share relevant information and provide the complainant with a coordinated response.
- It is evident from the complaints correspondence that Mr X raised concerns about both health and social services in her complaints to the Council. This should have led the Council to coordinate a joint response to Ms X’s complaint. That it did not do so is fault.
- This caused Ms X unnecessary time and trouble.
- I found fault with the care provided to Miss Y by the Council, Devon Trust and Practice in 2015 and 2016. I have set out the actions these organisations have agreed to complete below.
- Within one month of my final decision statement, the Council will write to Ms X and Miss Y to apologise for its:
- Failure to manage Miss Y’s transfer from Placement 1 to Placement 2 appropriately The Council will pay Miss Y £200 in recognition of the impact this fault had on her. The Council will also pay Ms X £100 for the distress and uncertainty she suffered as a result.
- Failure to make a safeguarding referral for Miss Y when her behaviours escalated in 2015. The Council will pay Miss Y £100 as the failure to make a referral represented a missed opportunity to reduce the risk caused to her by her escalating behaviour. The Council will also pay Ms X £100 for the distress and uncertainty she suffered as a result of this fault.
- Failure to arrange a coordinated response to her complaint as required by the Regulations. The Council will also pay Ms X £100 in recognition of the time and trouble she was put to as a result of this fault.
- This represents a total payment of £300 to Miss Y and £300 to Ms X.
- Within one month of my final decision statement, the Devon Trust will write to Ms X and Miss Y to apologise for its:
- Failure to take appropriate action (such as arranging Autism assessment or seeking a second opinion) when Miss Y’s condition deteriorated in 2015. The Devon Trust should pay Ms X £200 for the distress and uncertainty caused to her by this fault.
- Failure to make a safeguarding referral for Miss Y when her behaviours escalated in 2015. The Devon Trust should pay Miss Y £100 as the failure to make a referral represented a missed opportunity to reduce the risk caused to her by her escalating behaviour. The Devon Trust should also pay Ms X £100 for the distress and uncertainty she suffered as a result of this fault.
- Failure to undertake regular medication reviews for Miss Y during her hospital admissions. The Devon Trust should pay Ms X £100 in recognition of the further uncertainty this caused for Ms X.
- This represents a total payment of £100 to Miss Y and £400 to Ms X.
- Within one month of my final decision statement, the Devon Trust will also arrange an Autism assessment for Miss Y with a view to providing her with a clear diagnosis.
- Within one month of my final decision statement, the Practice will write to Ms X and Miss Y to apologise for its:
- Failure to make a safeguarding referral for Miss Y when her behaviours escalated in 2015. Practice will pay Miss Y £100 as the failure to make a referral represented a missed opportunity to reduce the risk caused to her by her escalating behaviour. The Practice will also pay Ms X £100 for the distress and uncertainty she suffered as a result of this fault.
- This represents a total payment of £100 to Miss Y and £100 to Ms X.
- I found fault by the Council, Devon Trust and Practice with regards to the care they provided to Miss Y in 2015 and 2016.
- In my view, the actions these organisations have agreed to undertake represent a reasonable and proportionate remedy for the injustice arising to Miss Y and Ms X from this fault.
- I found no fault with the care provided by the Royal Devon Trust and Torbay Trust during Miss Y’s hospital admissions in 2015 and 2016.
- The scope of my investigation also included the CCG. However, I am satisfied the CCG had no substantive role in Miss Y’s care during this period and I found no fault by that organisation.
- I have now completed my investigation on this basis.
Parts of the complaint that I did not investigate
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- I did not investigate events that occurred before 2014. Ms X was involved in Miss Y’s care from 2012, when she returned from overseas. In my view, Ms X was in a position to raise complaints about matters that took place in 2013 at the time or shortly after but does not appear to have done so. I found no good reason to investigate these matters at this late stage.
- Ms X is also concerned about what she considers to be a lack of physiotherapy support for Miss Y while she was recovering from her hip injury. This issue was not included in the scope of investigation agreed with Ms X in November 2017 and shared with the organisations she is complaining about. For this reason, I did not investigate this aspect of Ms X’s complaint.
- The majority of the issues Ms X raises about Miss Y’s physiotherapy relate to care provided following her discharge from hospital to a placement in Cornwall. If Ms X wishes to pursue a complaint about Miss Y’s physiotherapy care during that period, she would need to direct this to the relevant service in Cornwall.
- It should also be noted that physiotherapy is an NHS (rather than social care) service. The Council had no substantial role in arranging physiotherapy for Miss Y.
Investigator's decision on behalf of the Ombudsman