The Ombudsman's final decision:
Summary: Ms X complained that Walsall Metropolitan Council, Walsall Healthcare NHS Trust and Pleck Health Centre failed to meet safeguarding duties in respect of her late mother, Mrs Y. The agencies responded appropriately to safeguarding alerts and made best interest decisions about Mrs Y’s care that considered relevant evidence, including the difference of views amongst family members. The Council was at fault for not feeding back the outcome of its safeguarding investigation to the Pleck Health Centre. This did not cause injustice.
- Ms X complains that Walsall Metropolitan Borough Council (‘the Council’), Walsall Healthcare NHS Trust (‘the Trust’) and Pleck Health Centre (‘the Practice’) failed to meet their own individual safeguarding duties, or to work collaboratively when Ms X reported concerns about her late mother, Mrs Y.
- Mrs Y was discharged from end of life care at hospital to live back with family members Ms X had raised concerns about. She says this caused Mrs Y to suffer abuse and neglect before she died, and Ms X serious and avoidable distress. She wants the three organisations to apologise and learn lessons from what happened.
What I have investigated
- I have investigated events from January 2018 onwards for the reason set out in paragraph 9 below.
The Ombudsmen’s role and powers
- The Local Government and Social Care Ombudsman (LGSCO) and Public Health and Social Care Ombudsman (PHSO) investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint, caused injustice or hardship. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Health Service Commissioners Act 1993, section 3(1), Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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.
- We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We 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 have investigated events concerned in this complaint since January 2018 but not before then. That is because a previous Ombudsman investigation ended in December 2017 making recommendations. This provided the proper opportunity to consider and investigate earlier events. Available records and staff mean it is possible to carry out a fair and meaningful investigation of actions across the NHS and Council since January 2018.
- If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we 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 spoke to Ms X about her complaint. I made enquiries and reviewed clinical records and correspondence from the Trust, Council and practice.
- I wrote to Ms X, the Council, Trust and practice with my draft decision and gave them an opportunity to comment. I consider any comments made before making a final decision.
What I found
- Ms X’s parents, Mr and Mrs Y had a range of serious health problems. They had shared their home with their son Mr Z (Ms X’s brother), his wife and children for several years. Mr Y died in January 2018.
- Ms X was concerned that Mrs Y was unhappy with this living arrangement and that she wanted to move to a care home and, ultimately a hospice when she needed end of life care.
- The Council appointed an independent advocate for Mrs Y who worked with her during 2017 and 2018. This was to establish Mrs Y’s thoughts and wishes about her care and support needs. The advocate visited Mrs Y seven times during this period, twice at her home address and five times in the hospital setting. The advocate was satisfied, based on their conversations with Mrs Y, that she wanted to remain living at home.
- In December 2017 the Local Government and Social Care Ombudsman investigated a complaint from Ms X about the Council’s support for Mrs Y. The investigation found fault in how the Council had assessed Mrs Y’s capacity to make decisions about her discharge from hospital. As a result of our findings the Council agreed to carry out an independent capacity assessment and, if necessary, organise a best interest decision to decide where Mrs Y should live. It also agreed to share lessons learnt with staff.
- The Council carried out an independent capacity assessment of Mrs Y in January 2018. This found she lacked capacity to make decisions about care, support and accommodation needs. Decisions regarding Mrs Y’s care needs and accommodation therefore needed to be taken as best interest decisions, on her behalf. The Council planned a best interests meeting including family members that took place in March 2018. I consider this below. The Council also shared learning with staff about best interest planning to make sure they knew when to use this approach.
- The Council investigated safeguarding concerns about Mrs Y in January 2018. These concerned the adequacy and environment for care she was getting at home. Its investigation included interviewing family members and discussing the allegations with Mrs Y’s carers. It decided, based on its assessment of the situation, that it did not need to take further action because the risk to Mrs Y was low. It asked the care agency to monitor the situation.
- In early February 2018, the Practice visited Mrs Y at home. Ms X had raised concerns about her living arrangements. The Practice found Mrs Y sleeping in a make-shift bed in the room being used by the family for rituals associated with Mr Y’s recent death. The GP discussed their concerns about this arrangement with Mr Z. It understood from this discussion with him that Mrs Y wanted to sleep in the room. The Practice decided the matter was resolved and took no further action.
- Also in early February the Council received a report of further safeguarding concerns raised by Ms X about Mrs Y’s care arrangements at home. The Council investigated, again including talking to family members and attempting to talk to Mrs Y using an interpreter. It decided, based on its investigation, that it again did not need to take further action. It again asked care workers to keep monitoring the situation.
- On 6 March 2018 the Council held the best interests meeting about Mrs Y’s care. This included family members and Mrs Y. The meeting considered concerns about lack of privacy in the family home, Ms X’s concerns about noise, lack of care and her preference for hospice end of life care. The meeting chair concluded having considered the views of those present that it was not in Ms Y’s best interests to move out of the family home into a care setting. The minutes record that this decision was agreed by all present at the meeting including Ms X. Ms X says she and other family members were outvoted.
- The Practice attended the first half of the meeting to share information about the practice’s health and safeguarding concerns. The Practice says it asked the Council to share outcomes from the meeting with it. It says this did not happen. It later raised concerns about poor communication between Council and primary care colleagues at a multi-disciplinary team in February 2019. This agreed to improve future practice.
- In August 2018, Mrs Y had been admitted to hospital. Ms X attended. Her brother Mr Z was also there asking to take Mrs Y home. Ms X had concerns this was not in her best interests. She says the Trust told her no decisions would be made without proper consultation with all relatives and that nothing would be done without this happening. Care records show the hospital was aware of the importance of involving family members in decision making and to respect cultural sensitivities.
- Hospital records state Ms X wanted Mrs Y to go into a hospice and to be somewhere quiet for end of life care, because that was what Ms X reported her mother had earlier told her. The records also state Mr Z wanted her to return home to life with them.
- They record it was unclear who was next of kin. It was agreed that a second multi-disciplinary team meeting would discuss the best place for Mrs Y to be discharged to for end of life.
- After briefly returning home, Ms X returned to the hospital to find Mrs Y had been made ready to return home for end of life care. Mrs Y had concerns about this and asked they be recorded.
- Clinical records show the planned for multi-disciplinary team meeting happened on 31 August to discuss Mrs Y’s discharge arrangements. The record states this was with family including three daughters, son and daughter in law present. It also involved the consultant and district nurse. It decided that it was in Ms X’s best interests to return home with input from the palliative care team and district nurse service.
- Ms X says the home was very noisy and not what Mrs Y would have wanted. Ms X agreed to Mrs Y staying where she was because she was not expected to live much longer. Mrs Y died in early September 2018.
Ms X’s complaint to the Council, Trust and Practice
- Ms X complained to the Council, Trust and Practice in December 2018. She raised a series of concerns, including about events before January 2018 and involving Mr and Mrs Y which I have not investigated for the reasons explained in paragraph 9.
- She said the agencies had not protected her from abuse she had reported by family members. They had allowed Mrs Y to die in a noisy, upsetting environment (her home shared with Ms X’s brother and sister in law). She wanted the agencies to investigate and learn from what had happened, apologise and explain how things would change.
The Practice response
- The Practice replied in January 2019. It apologised for any distress caused. It said that the Council safeguarding team had investigated the safeguarding concern it had raised. It did not know about the outcome of these investigations. It explained brothers and sisters had equal rights as next of kin and could be involved in decision making and care planning. It had taken Ms X’s concerns seriously, looked into any issues raised and taken appropriate action.
- The Practice said it had always communicated with all family members and knew of no Lasting Powers of Attorney concerning Mr and Mrs Y. It said it had dealt with the couple in a coordinated way with community and hospital teams and social services.
- The Practice said that since the complaint it had:
- checked all clinicians have up to date safeguarding training and information;
- set up a multi-disciplinary team with community physical and mental health services, social services, voluntary sector and community leads for long term conditions. This now discussed safeguarding and physical concerns; and
- would take part in a multi-disciplinary discussion about the complaint in February 2019 as a learning exercise.
The NHS Trust response
- The Trust responded, via NHS England. It said that records showed that it had discussed Mrs Y’s discharge in August 2018 with Ms X and her brother. They had different views about where Mrs Y should go. Ms X had said this should be a hospice. Her brother that Mrs Y should go back to live at home.
- The Trust contacted a Council social worker to check if there was any documented end of life plan. There was none. It said two days after admission it had discussed palliative care options with Ms X’s brother. It had discussed the option of hospice care the next day with Ms X.
- It said a doctor had spoken to Mrs Y in her first language and that she had given some indication she wanted to go home.
- The Trust said “During this admission there were some concerns raised within the ward area and the family and senior sister of the ward discussed how information could be passed to all members of the family, it is documented that it was agreed by the family in attendance that the son would be spoken with and then this information would be passed to the rest of the family”
- The Trust said its records show both Ms X and brother were identified as emergency contacts and treated as next of kin. It said the emergency contact arrangements had been “altered on the 23 August 2018… with regards to the son passing on information to his siblings, there is a further alteration at an unknown date whereby a second daughter’s details are added”.
- The Trust said its records showed it had raised safeguarding concerns about Mrs Y and had contacted the Council safeguarding team to check on this. It said it had reviewed safeguarding concerns before it had made decisions about their discharge and there were no current safeguarding concerns.
- The Trust was satisfied it had appropriately followed safeguarding and discharge policies. It apologised however for the distress the matter had caused.
The Council response
- The Council responded in January 2019 having been contacted by NHS England who were coordinating the complaint investigation. It summarised how it had dealt with the safeguarding concerns raised about Mrs Y
- It said it had tried to work with all the family in respect of Mrs Y’s care, support and safeguarding. It had appointed an independent care act advocate to help ensure Mrs Y’s voice was heard. It referred to the Best Interests Meeting on 6 March 2018, stating this showed how it had tried to consider the various family member perspectives.
- It said each time a safeguarding concern had been raised it had considered the case history, contacted other relevant professionals and decided what to do. It had investigated them fully.
- It had appointed an independent mental capacity assessor to review Mrs Y’s capacity to make decisions about her residence in January 2018, as agreed with the LGSCO. Their assessment decided Mrs Y, at that time, could not make an informed decision about her care and support needs. Because of this, the Council arranged the best interests meeting in March 2018. This heard views from social workers, Mrs Y’s GP and a previous independent advocate, a care agency, and Mrs Y’s. It also considered a record of Mrs Y’s wishes before her memory problems. The best interest meeting decided it was in Mrs Y’s best interests to remain in her own home with support.
- Ms X told me the Trust, GP and Council had failed in their duty of care towards Mrs Y. Ms X had consistently raised concerns about her mother’s wellbeing with each organisation. She felt they had ignored her concerns and only taken her brother’s views into consideration.
- Ms X holds strong and deeply held views about the decisions made about the concerns she raised with her late mother’s care before she died. The Ombudsmen have to consider whether decisions about her safeguarding and best interests were taken following appropriate procedures, having regard to relevant matters such as family views. Providing this is so, we cannot question the decisions taken by the Council and NHS bodies.
- The Practice appropriately reported safeguarding concerns to the Council. It considered whether any immediate action needed to be taken and decided, based on its discussion with family members that this was not necessary. There is no fault in how it considered these matters.
- The Council investigated the safeguarding reports from the Practice and Ms X appropriately and in line with its safeguarding procedures. It carried out appropriate interviews with family members and carers, including attempting to discuss the situation with Mrs Y. It decided, based on its investigations that no further action was necessary. Therefore although Ms X continues to have serious concerns about the situation, there is no evidence of fault in how the Council considered the reports and made its decisions based on them.
- The Council should have reported back to the Practice about the outcome of its investigation. This was in my provisional view fault, but it did not cause Mrs Y or Ms X injustice. As a result of the subsequent complaint and multi-agency investigation the Council and NHS bodies have implemented improved information sharing arrangements. This is an appropriate response to this concern and shows learning from what happened.
Decision making about Mrs Y’s best interests
- The Council and NHS bodies recognised the uncertainty and divergence of views about where it was in Mrs Y’s best interests to live. They appropriately came together for a best interest decision making meeting in March 2018 where all parties agreed it was in Mrs Y’s best interests to remain living at home. They did so having been able to consider Ms X’s strongly held views about the appropriateness of living there with her brother’s family.
- When again faced with divergent views and uncertainty, the Council and NHS bodies appropriately again called a best interest meeting in late August 2019 to discuss end of life care. This considered appropriate evidence including the views of family members and decided it was in Mrs Y’s best interests to receive end of life care at home. This decision was, again taken in the knowledge of Ms X’s views that this was not in Mrs Y’s best interests.
- Ms X holds very strong, deeply held concerns that these best interest decisions were wrong and that it would have been better for her mother to have been cared for in a hospice or otherwise away from her home. However, the evidence I have considered shows there was no fault in how those decisions were taken. All the agencies concerned were aware of the divergent family views and weighed these up appropriately alongside other factors.
- Although the evidence does not show there was fault by any of the agencies, the Practice, Trust and Council have stated that, partly in response to the case, they have improved how they work together to support patients with complex care needs.
Investigator's decision on behalf of the Ombudsman