The Ombudsman's final decision:
Summary: The Ombudsmen found fault with the Council for not providing a copy of Mr Y’s care and support plan at Marlborough Court Care Home to Ms X, which led her to lose faith in the Council. The Council did not provide a carer’s assessment to Ms X, which caused her uncertainty. There was fault with the Council’s Deprivation of Liberty Safeguards (DoLS) process for Mr Y at The Beeches Care Home. However, the outcome was unlikely to have different for Mr Y, who was deprived of his liberty, but Ms X still suffered distress. Also, Weybourne Care Home did not fully involve Mr Y or Ms X during a care and support assessment. The Council was at fault as the commissioner of that service. We have asked the Council to provide an apology, £100 for distress and to review procedures to remedy the injustice to Ms X.
- Ms X complains on behalf of Mr Y about Royal Borough of Greenwich Council (the ‘Council’), three Care Homes which were acting on behalf of the Council, Lewisham and Greenwich NHS Trust (the ‘Trust’), Abbey Wood Surgery (‘Practice 1’) and Gallions Reach Health Centre (‘Practice 2’). Specifically, she says:
- The Council failed to assess Mr Y’s care and support needs at three separate care homes: Marlborough Court, Weybourne, and The Beeches.
- Marlborough Court and The Beeches provided poor care for Mr Y’s swollen stomach and legs
- The Council’s decision that Mr Y could not go on holiday was not in his best interests and that Practice 2 said that Mr Y was not fit to fly. Also, the Council’s decision to move Mr Y to The Beeches in December 2016 was wrong.
- The Council’s Deprivation of Liberty Safeguards (DoLS) process was flawed during Mr Y’s stay at The Beeches
- Practice 1 and Practice 2 prescribed metformin to Mr Y from July 2016 onwards, and the Trust doubled the dosage of metformin in October 2016.
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. 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.
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. In this case, the care homes were commissioned by the Council and therefore acting on its behalf. (Local Government Act 1974, section 25(7), as amended)
- We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
How I considered this complaint
- I have considered the complaint information Ms X has provided to me.
- I have asked the Council, the Trust, the three Care Homes and the Practices to comment on the complaint and provide supporting documentation.
- I have taken the relevant law and guidance into account before coming to a view.
- I have sought clinical advice from an independent GP.
- I have written to Ms X, the Council, the Trust and both Practices with my draft decision and considered their comments.
What I found
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
- The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has and provide a copy to the any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
- The Council does not have a specific policy regarding care and support planning. However, on its website, it states: “You will be fully involved with your assessment and encouraged to express your views. Your carers and family can also be involved in your assessment if you wish”.
- Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carer’s assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
- Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
- The Council’s Choice and Control – Carer’s Policy states that “All carers are entitled to an assessment in their own right. This assessment will take into account the impact that their caring responsibilities have on their social life, health and emotional well-being. It should also explore how these caring responsibilities impact on the Carer’s ability to have a job, undertake training or education.”
Best interest decision making
- 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 themselves.
- 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. 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 also has to consider if there is a less restrictive choice available that can achieve the same outcome.
- If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
Deprivation of Liberty Safeguards (DoLS)
- The DoLS is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to gain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice. The Law Society published non-statutory guidance, Identifying a deprivation of liberty: a practical guide (April 2015) to help those involved with DoLS to understand the process.
- The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
- Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the MCA 2005. The ‘managing authority’ (the care home) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty. The application for authorisation should be made within 28 days.
- There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the council. On application, the council must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, a usually including social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation.
- Section 4.4 of the DoLS Code of Practice (2008) states that an equivalent assessment can be relied upon instead of obtaining a fresh assessment. An equivalent assessment is an assessment:
- That has been carried out in the last 12 months, not necessarily for the deprivation of liberty authorisation
- That meets all the requirements of the deprivation of liberty assessment,
- Of which the supervisory body is satisfied that there is no reason to believe that it is no longer accurate, and
- Of which the supervisory body has a written copy
Prescription of metformin
- Type 2 diabetes is a lifelong condition that causes a person’s blood sugar level to become too high. Metformin is a medicine used to treat type 2 diabetes.
- The National Institute for Health and Care Excellence’s (NICE) Clinical Knowledge Summaries provide GP’s with a summary of practical guidance and best practice in respect to over 330 common and/or significant conditions including type 2 diabetes.
The Council failed to assess Mr Y’s care and support needs at three separate care homes: Marlborough Court, Weybourne and The Beeches.
- Mr Y was admitted to Marlborough Court on 14 December 2015. The records show the care home completed a pre-admission assessment on 11 December and the Council completed Mr Y’s care plan four days after admission to Marlborough Court. I am satisfied the Council completed this within a reasonable time frame.
- The care plan took the views of Mr Y, Ms X and Mr Y’s GP into account. The care plan considered his needs, how staff and Ms X will meet those and what the overall aims are for Mr Y. However, the Council did not share this care and support plan with Ms X despite her requesting it at the time. This was fault, as it was not in line with the requirements of the Care Act 2014. I can appreciate how this would have led Ms X to lose faith with the Council.
- On 20 February Mr Y moved to Weybourne because Marlborough Court said it could not meet Ms X’s expectations and had served notice that Mr Y had to leave. Weybourne completed six different care plans for Mr Y in just over three weeks of admission (22 February 2016 – 15 March). This was a reasonable time frame. While it would have been preferable for staff to have completed a ‘Physical and Mental Health Plan of Care’ sooner, they kept the plan updated during his stay. In July 2016 staff added a diagnosis of diabetes to the care plan, and how they could provide support for this.
- Each of Weybourne’s care plans correctly identified Mr Y’s needs and how staff will meet them. However, I cannot see how the care plans took Mr Y’s or Ms X’s views into account (except for the Night Time Preferences Plan). This is important because the Care Act 2014 states that care plans should specify what aims and outcomes someone wants to achieve are. While I understand Mr Y may have found difficulty expressing his wishes, owing to his lack of mental capacity, there was an opportunity to consult with Ms X about this. This missed opportunity by Weybourne was fault.
- Weybourne provided good support for Mr Y’s needs during his stay, therefore there was no direct impact on Mr Y. However, I recognise Ms X would have suffered some distress at not being involved in the care and support planning.
- In September 2016, Ms X removed Mr Y from Weybourne. She says this was because she wanted to take Mr X on holiday. The Council agreed to Mr Y staying with Ms X because she had been unhappy with the care that Weybourne had provided to Mr Y. Before Mr Y went to live with Ms X, the Council developed an emergency care plan. This was good practice.
- The care plan took the views of Mr Y, Ms X and Mr Y’s GP into account. The care plan considered his needs, how staff and Ms X would meet those and what the overall aims were for Mr Y. I do not consider the Council’s care and supporting planning was fault.
- Mr Y was admitted to The Beeches on 23 December 2016 following a period in hospital. The Council completed a standard care plan for Mr Y two days before he was admitted to The Beeches. This was good practice.
- The care plan took the views of Mr Y, Ms X’s daughter and Mr Y’s GP into account. The care plan considered his needs, how care staff would meet those and what the overall aims were for Mr Y. The Beeches also devised a specific nursing care plan to help Mr Y preserve his independence. This was good practice. I do not consider the Council or The Beech’s care and supporting planning was fault.
Mr Y’s swollen stomach and legs
- Shortly after Mr Y was admitted to Marlborough Court, Ms X raised concerns that Mr Y’s stomach and legs were swollen. Staff quickly arranged a GP to review him. The GP who saw him prescribed a treatment for Mr Y’s legs and arranged for a blood test, which subsequently showed no issues. A different GP also suggested using moisturiser on Mr Y’s legs.
- After Mr Y started treatment for his swollen legs, staff noted the swelling in Mr Y’s legs lessened. The treatment prescribed was in line with the NICE guidelines. While Ms X had a difference of opinion to the GP about Mr Y’s care and treatment, the swelling in Mr Y’s legs lessened overtime.
- The GP also referred Mr Y for an X-ray of his abdomen to consider any underlying cause for concern. The X-ray returned a normal result. I have not seen any evidence of fault by Marlborough Court about the care and treatment provided to Mr Y.
- Staff at The Beeches noticed that Mr Y had damp feet in February 2017 and they arranged for a GP to review him. The GP later prescribed cream for a fungal infection. The treatment prescribed was in line with NICE guidelines. After this point, staff did not note any further concern in the daily care records.
- Ms X also complained to the Deputy Manager that Mr Y’s stomach was swollen. I have reviewed the daily care records, and have not found any evidence that Mr Y was complaining of pain from a swollen stomach. Therefore, staff did not see a reason to raise this issue further. Therefore, I do not consider that The Beeches needed to take more action. I have not seen any evidence of fault by The Beeches about the care and treatment provided to Mr Y.
- Mr Y was living at Weybourne when Ms X first sought a carer’s assessment (9 March 2016). At that time, from Weybourne’s daily notes, it was meeting his needs. Soon after, a DoLS best interest assessment confirmed that was in Mr Y’s best interest to deprive him of his liberty to reside at Weybourne. As such, there was no need to carry out a carer’s assessment for Ms X as Mr Y was living at Weybourne and she did not have to provide care for him.
- However, Mr Y returned to Ms X’s care on 8 September 2016. The Council had already identified an emergency care plan, but there was also reason to believe that Ms X may need extra support. The Council did not carry out a carer’s assessment despite Ms X requesting one three times in September. Ms X was clearly struggling to manage Mr Y’s needs at that time. I consider the Council was at fault by not carrying out an assessment of Ms X’s needs.
- I cannot say, on balance, if the result would have been different for Ms X if the Council had completed a carer’s assessment. However, Ms X has suffered uncertainty at not knowing what the result would have been.
Best interest decisions
Taking Mr Y on holiday
- Ms X wanted to take Mr Y on holiday.
- On 23 September 2016, the Council held a best interests meeting at Weybourne to discuss medication, accommodation and the implications of Mr Y going on holiday. The Council and GP said they would need to see a travel itinerary, return ticket and travel health insurance (including who would check his diabetes). The Council noted that Ms X was satisfied with the result of the meeting. Ms X agreed to prove this information.
- Ms X has provided me with an email dated 26 September 2016 addressed to the Social Worker who was present at the 23 September best interests meeting. I am satisfied that on the balance of probabilities, the Social Worker received this email. Progress on the holiday subsequently halted as Mr Y’s needs changed and Ms X asked for Mr Y to go back to living in Weybourne.
- At the next best interest’s decision meeting on 14 December 2016, the Council said the GP from Practice 2 had concerns about Mr Y’s fitness to fly, as he had previously collapsed with low blood pressure. However, the Council said that if the 23 September email contained all the information it needed then it would agree it was in Mr Y’s best interests to go on holiday. I have not seen evidence that Ms X satisfied the Council’s need. While Ms X had provided the Council with some information, her email did not contain a detailed travel itinerary, proof of travel insurance or the return ticket. Therefore, I consider the Council took the best interest decision that Mr Y was not fit to fly without fault.
Moving Mr Y to The Beeches
- Ms X also complains the Council’s decision to move Mr Y to The Beeches in December 2016 was not in his best interests.
- Mr Y has been staying with Ms X since August 2016 when she removed him from Weybourne to take him on holiday. On 8 November, Ms X asked for Mr Y to return to Weybourne as she was not coping with his care needs and it was having an impact on her own health. Weybourne refused to take Mr Y back because he had previously exhibited sexualised behaviour while at the home.
- Mr Y was subsequently admitted to hospital on 19 November as he had been physically and verbally aggressive towards Ms X.
- At a best interests meeting held on 14 December 2016, the Council considered Mr Y’s future care needs. Ms X’s daughter was also there as Ms X could not attend. The minutes show she was involved and able to put forward her concerns and views about moving Mr Y to The Beeches. The Council was under pressure to move Mr Y to The Beeches from the Trust, who said Mr Y was ready to be discharged. There were limited choices because of Mr Y’s past sexualised behaviour. There is no evidence of fault in how the Council considered Mr Y’s needs and how the decision to admit him to The Beeches was made.
DoLS at The Beeches
- Mr Y was admitted to The Beeches on 23 December. The Beeches completed a DoLS form for both an urgent and a standard authorisation. The urgent authorisation lasted seven days therefore, after 30 December 2016 there was no DoLS in place. The Council should have authorised the DoLS within 21 days.
- On 14 May 2017, an independent best interests assessor carried out a DoLS assessment. The assessor decided that it would be in Mr Y’s best interests to remain at The Beeches. The best interests’ assessor did not involve Ms X in the decision making as they did not believe Ms X was acting in Mr Y’s best interests.
- On 22 May 2017, the Council confirmed the standard authorisation to deprive Mr Y of his liberty until 2 December 2017.I have found evidence from the advocate’s assessment to suggest that Mr Y wanted to leave The Beeches. The advocated noted: “I asked him if he felt happy living at the home. He stated “no, not happy at all”. I asked him why. He added “The people get on my nerves, they push you around”. I asked him whom he mean. He explained “the people living here””. Whether other residents were pushing Mr Y or not, I consider Mr Y was distressed at The Beeches.
- However, I am satisfied that Mr Y was in the correct place at those times. The Council had ordered an independent mental capacity advocate to complete a report on Mr Y in March 2017. That report had concluded that the deprivation of Mr Y’s liberty was justified. Mr Y would have been distressed anywhere he was placed, however the assessments carried out and the result of the best interests’ meetings were that Mr Y should stay in the care home.
- I understand Ms X would have been naturally upset at Mr Y having to stay at the care home when at times he did not want to, however, apart from taking too long, there was no fault in how the decisions were made. Apart from the delays identified, I have not found any fault with the Council’s DoLS process.
Prescription of metformin
- While Mr Y was in Weybourne, blood tests showed he had a high level of sugar in his blood. The NICE guidelines suggest that a second test may be required to show that a person’s blood sugar level remained high. However, in Mr Y’s case, he was showing other symptoms which suggested he had diabetes – glucose in his urine.
- In July 2016 Practice 1 diagnosed type 2 diabetes and this was in line with good practice. Practice 1 decided to treat Mr Y with metformin (one 500mg tablet to be taken twice daily). This was in line with the NICE guidelines.
- Practice 2 continued prescribing metformin to Mr Y to treat his type 2 diabetes. As I have said above, this was in line with the NICE guidelines.
- Mr Y later showed signs of low blood pressure, so a doctor at the Trust (in October 2016) increased Mr Y’s metformin (one 1g tablet/two 500mg tablets to be taken twice daily). Again, this was in line with the NICE guidelines. I have not seen any evidence of fault in Practice 1, Practice 2 or the Trust’s actions.
- I appreciate that Ms X was unhappy that Mr Y was suffering with diarrhoea, which is a known side effect of the drug. However, the GP prescribed slow release metformin which controlled it better.
- I recommend that within four weeks of the final decision, the Council should apologise to Ms X for:
- The lack of faith caused by not sharing a copy of Marlborough Court’s care plan with her;
- The distress caused by Weybourne not involving Mr Y or her in the care and support planning for Mr Y;
- The uncertainty caused by not carrying out a carer’s assessment when Mr Y went back to live with Ms X in September 2016; and
- The distress caused by not authorising DoLS at The Beeches within a reasonable timeframe
- Remind staff to share care plans with service user’s representative in similar circumstances
- Reviews its procedures to ensure care homes consider the views of service users, and if suitable, family/carer’s during the care and support planning process.
- Should make all relevant staff aware of the Council’s carer’s assessments policy, so that when one is requested, and appropriate to do so, it is followed up.
- The Council did not share Mr Y’s care plan with Ms X, and this was fault, which led her to lose faith in the Council. Also, Mr Y and Ms X’s views were not obtained by Weybourne, and this was fault.
- Marlborough Court and The Beeches care and treatment for Mr Y’s swollen stomach and legs was provided without fault.
- The Council did not carry out a carer’s assessment in September 2016. Whilst I cannot say what the outcome of that assessment would have been, Ms X suffered uncertainty at not receiving the assessment.
- The Council’s best interest decisions in December 2016 were taken without evidence of fault.
- The Council took too long to complete a standard authorisation at The Beeches. This was fault, but I cannot see how the outcome would have been any different. I have made recommendations to the Council to remedy the distress that Ms X suffered.
- Both the Practice and the Trust’s decision to treat Mr Y with metformin for his diabetes was in line with national guidance.
Investigator's decision on behalf of the Ombudsman