Surrey & Borders Partnership NHS Foundation Trust (19 019 904a)

Category : Health > Other

Decision : Not upheld

Decision date : 21 Dec 2020

The Ombudsman's final decision:

Summary: Mrs B complained the Council failed to properly monitor two homecare agencies it commissioned to provide care to her mother, Mrs C. She also said the Trust’s mental health assessment was poor as it failed to record visible bruising to Mrs C’s face. The Council’s safeguarding investigation could not determine the cause of bruising found on Mrs C’s body after she was admitted to hospital in 2019. The Trust said its officer did not notice any bruising when the assessment was completed. The Council accepted there had been systemic failings, but it could not substantiate the allegation of neglect. We cannot say the Trust was at fault in the way it completed the mental health assessment. There was fault by the homecare agencies commissioned by the Council, but we did not find fault in the way the Council monitored the agencies or in the way it completed a safeguarding investigation. The Council agreed to our recommendation and will arrange for a written apology to be sent to Mrs B for the injustice caused by the systemic failings identified.

The complaint

  1. The complainant, who I shall refer to as Mrs B, complains about the care and treatment her mother, Mrs C, received in the community from two care agencies commissioned by the Council to provide home care from 2018. She feels the Council failed to safeguard her mother from physical abuse as it did not properly monitor the care agencies. She said the Trust’s community mental health team’s assessment completed in August 2019 was poor as the assessor failed to record visible bruising on her mother’s face within the assessment. When her mother was admitted to hospital with bruising in September 2019, she says the Trust delayed taking photographs of the bruising despite completing a body map. The complainant claims this affected the effectiveness of the Council’s safeguarding investigation.
  2. Mrs B says her mother was failed by all the authorities and this caused her and her family avoidable distress. To put things right the complainant seeks compensation and apologies from all the agencies involved.

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The Ombudsmen’s role and powers

  1. 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, and Health Service Commissioners Act 1993, section 18ZA)
  2. 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)).
  3. 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.
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by the complainant by telephone and in writing. I have also considered information provided by the Council and the Trust in response to my enquiries. I have taken account of the law and guidance relevant to this complaint.

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What I found

Legal and administration context

  1. A council 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. (section 42, Care Act 2014)
  2. The Council has a safeguarding procedure that outlines the process for its staff to follow in relation to its duties under Section 42 of the Care Act 2014.
  3. The Trust’s safeguarding procedures include the following:
    • Risk Assessment
    • Report concerns to Line Manager
    • Incident raised on DATIX
    • Safeguarding Team at Hampshire County Council or relevant council contacted
    • Follow up at MDT meeting which would have incorporated the safeguarding team at relevant council
  4. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which must be in the person’s best interests, on their behalf.

There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Background

  1. Mrs C is diagnosed with dementia and received a domiciliary care package arranged and funded by the Council from May 2018. The care package consisted of a live-in carer employed by Agency 1. A different domiciliary care provider, Agency 2, provided breaks for the live-in carer. Mrs B holds LPA for her mother so can make decisions on her behalf in relation to her health, welfare and property and financial affairs.
  2. The Trust’s mental health practitioner went to visit Mrs C in August 2019 to complete a mental health assessment. The Trust has not provided a copy of the assessment completed but provided a copy of the assessment outcome letter. The Council planned to complete a review of Mrs C’s care arrangements in August, but its officer went on sick leave so the review did not take place.
  3. In September Mrs C went into hospital and the hospital staff noted significant bruising all over her body. The hospital staff completed a body map chart at the time but did not take photographs until a week later. The Council acknowledged a safeguarding alert and contacted the police in line with its Safeguarding Policy.

What happened

Safeguarding Section 42 planning meeting

  1. The Council organised a safeguarding planning meeting in October. Mrs B was present at the meeting as well as representatives from the Council, the Trust, the police, and Agency 1.
  2. The meeting established the hospital had completed a body map/chart detailing significant bruising and photographs taken a week later. Mrs B said the hospital had told her the bruising looked like non-accidental bruising. The hospital social worker had requested a professional opinion to determine how the bruising to
    Mrs C’s body had been caused.
  3. The police said they had spoken to Mrs C, but she could not give a statement because of her dementia. The police decided it would be difficult for them to prove how Mrs C had sustained the bruising because she could not give a statement.
  4. The Chair noted the carer had recorded in the care notes that Mrs C had fallen but there was very little detail to explain the circumstances of the fall. The Chair’s expectation was that any unexplained bruising should have been reported if they had been the result of Mrs C falling. Mrs B added that a mental health assessor had also failed to report the bruising when they visited.
  5. The Chair acknowledged it would have been appropriate for the carer to have reported any bruising sustained whether by falls or unexplained. It was made clear at the planning meeting that Agency 1 needed to report any concerns to the community team immediately. Telephone number provided and contingency planned agreed.
  6. The police agreed for Agency 1 to complete their own investigation. This could not be done before the planning meeting as it would have interfered with the police investigation.
  7. Actions arising from the meeting:
    • a specialist nurse’s opinion would be sought to determine whether the medication Mrs C was taking could have resulted in bruising.
    • obtain permission from the hospital for the photographs and the body map to be shared with the care agency.
    • care providers to complete their own investigation and share with the Council, the police, and the family.

Safeguarding Section 42 review meeting

  1. The Council held a safeguarding review meeting in November 2019. Mrs B was present at the meeting as well as the Council and representatives from Agency 1 and Agency 2.
  2. The Council considered the reports from the care agencies and found that Agency 1 had provided the main carer and one other carer who had provided carer relief. Agency 1 said it had established that its carer had provided good care but if she were to return to work disciplinary action would be taken as well as training provided. A manager from Agency 1 said she was not sure whether the main carer had completed dementia training.
  3. In its report Agency 1 concluded the probable cause of the bruising was likely to be from falls.
  4. Agency 2 also completed an internal investigation to report back to the meeting. It said its carer had noticed bruising to Mrs C’s eye in August 2019. The carer had reported the matter to the office, but the Office Manager did not report the matter to the Council in line with their safeguarding procedures. This was because
    Agency 2 believed Agency 1 had already reported the matter to the Council. However, Agency 2 had reported the matter to the Care Quality Commission.
  5. Mrs B questioned how Agency 2 could have missed bruising to other parts of her mother’s body such as her womb and groin area. Mrs B felt the carer should have seen this when helping her mother to the toilet. Mrs B also raised a concern that the Trust’s mental health assessor did not record any visible bruising to Mrs C’s face when an assessment was completed in August 2019.
  6. The Safeguarding Chair said although she was mot medically trained the extent of the bruising and some of the bruising sustained by Mrs C could not be clarified. The Chair felt the bruising did not appear to be consistent with falls.
  7. Mrs B was concerned there was unexplained bruising and felt her mother had been physically abused and neglected. She also said an independent witness (a neighbour) had heard a carer verbally abusing her mother. However, the neighbour had not reported this to the Council or the police at the time.
  8. The police provided a report following their investigation. The police report said medical professionals could not say if Mrs C’s injuries had been caused by ‘foul play’. The bruising could have been caused by Mrs C falling which had happened several times. When the police interviewed Mrs C, she was unable to say whether anyone had hurt her and how the bruising had been caused. The police noted Mrs C’s mental health was deteriorating at the time of the interview.
  9. The Chair said the Council was led by the police investigation and medical professionals. Although there were concerns about how the bruising had been caused there was no evidence that any of the carers had deliberately neglected Mrs C. The Chair suggested another meeting be held and a representative from the mental health team should be invited to advise what was observed during the visit in August 2019.

Second Safeguarding Section 42 review meeting

  1. The Council held a second safeguarding review meeting in January 2020. The minutes of the meeting note the Council had invited the Trust’s Mental Health Team to the safeguarding meeting. In response to Mrs B’s complaint the Trust said it was not invited to the safeguarding meeting. Information provided in response to the Ombudsmen’s enquires confirms the Council and the Trust agreed the Trust did not need to attend the meeting but would send progress notes instead to be read at the meeting.
  2. The Trust’s notes read at the time of the meeting confirmed its officer did not see a bruise on Mrs C’s face when the visit was made to complete an assessment. In response to the Ombudsmen’s enquiries the Trust said if its officer had witnessed any bruising or had any safeguarding concerns, she would have followed its safeguarding procedures. The Trust said its officer did not record any visible bruising on Mrs C when the visit was made to complete the assessment.
  3. Agency 2 again reported that its carer had reported the bruising to Mrs C’s eye to a manager and the manager had failed to report it in line with its safeguarding procedures although a report had been made to the regulator. Agency 2 said the manager had been reprimanded and would attend further information sharing training.
  4. The Safeguarding Chair confirmed the following:
    • the skin of an older person, such as Mrs C, would be thinner and frailer and likely to bruise more easily.
    • advice had been sought from a specialist nurse who had stated that Mrs C was taking blood thinning medication, and this could increase the likelihood of bruising on impact.
    • carers had recorded when Mrs C had fallen but they did not always report the falls as incidents as they should have done.
    • Mrs C had been visited by paramedics on three separate occasions and none of the paramedics had raised a safeguarding alert.
    • the police had considered the statement from the neighbour but confirmed they would not take further action as the statement did not identify who the carer was and did not provide enough evidence to confirm a crime had been committed.
  5. The Council’s Safeguarding investigation concluded the care agencies and the hospital had failed to follow their internal procedures. The Safeguarding Chair agreed with Mrs B that Mrs C had been let down by systemic failings and this would have caused distress to her family. The minutes of the meeting confirmed Mrs B remained dissatisfied and unhappy with the outcome of the safeguarding investigation.
  6. Mrs B then complained to the Ombudsmen.

Findings

  1. Mrs B said the Trust’s delay in taking photographs when Mrs C was admitted to hospital impacted on the effectiveness of the Council’s safeguarding investigation. During the course of this investigation, it became apparent that the Trust (the Hospital Trust) which ran the hospital where Mrs C was admitted to in
    September 2019 is a different Trust to the one named in this complaint, and responsible for the community mental health team.
  2. In any case I have considered what Mrs B said about how this impacted on the Council’s safeguarding investigation. The evidence available suggests the Hospital Trust completed a body map index to record the bruising on Mrs C’s body when she was admitted to hospital. It then took photographs a week later. The Council’s safeguarding investigation included an investigation led by the police and this was not reliant on the photographs. There was no dispute about whether Mrs C had unexplained bruising to her body as described through the safeguarding process. In addition, the photographs were not the only piece of evidence considered. It is unlikely the delay in taking photographs impacted on the effectiveness of the safeguarding investigation.
  3. The Trust did not provide a copy of the assessment its officer completed at the time. It did provide a copy of an assessment letter which was later sent to Mrs C. In response to the Ombudsmen’s enquiry the Trust said Mrs C was fully clothed at the time of the assessment in August and its officer had noted Mrs C looked tired with puffy eyes. The Trust’s mental health practitioner said they did not notice any bruising to Mrs C’s face when the assessment was completed. The Trust said its officer would have followed its safeguarding procedures if there had been visible bruising.
  4. I cannot know why the Trust’s officer did not notice any bruising to
    Mrs C’s face. A carer from Agency 2 had noticed a bruise to Mrs C’s eye around the same time the Trust’s officer had completed the visit. In addition, an ambulance report had recorded a bruise to Mrs C’s eye around the same date. I can understand why Mrs B had concerns as there is conflicting information which suggests her mother did have a visible bruise to her eye around the time the Trust’s officer completed the visit. On the evidence available now, I cannot say, on balance, the Trust acted with fault, failed to record visible bruising, and failed to follow safeguarding procedures.
  5. As Mrs B held LPA for Mrs C, she contributed to decisions about Mrs C’s care and support arrangements. The records also show Mrs B was involved in Mrs C’s care as she visited the property, provided informal care, and had ongoing discussions with the carers.
  6. The Council confirmed it had commissioned the two care agencies to provide homecare to Mrs C. In response to the Ombudsmen’s enquiries the Council provided evidence to show it had completed annual reviews of the care package since it started. The Council did miss a date for a review in 2019 due to its officer being on sick leave and apologised to Mrs B for this. This is unlikely to have caused any substantial injustice to Mrs C.
  7. The Council said its Contract Team sets standards for care agencies and then monitors the agencies. This is a usual arrangement when care agencies are commissioned to provide homecare. The evidence available does not suggest the Council received complaints about Agency 1 and Agency 2 during the time they had provided care to Mrs C. The evidence available suggests the Council monitored the two care agencies satisfactorily.
  8. As well as asking the police to complete an investigation the Council also asked Agency 1 and Agency 2 to complete their own investigations when it was appropriate to do so. The carers working with Mrs C were interviewed and asked questions relating to the daily entries in the care records. Following these interviews Agency 1 and Agency 2 identified areas where training was needed for staff and where disciplinary action would be taken. However, while the interviews led to the conclusions that some bruising may have been caused by falls the investigations did not provide further corroborating evidence to substantiate how other bruising had been caused.
  9. The Council sought information from a specialist nurse who said Mrs C’s medication could have contributed to the bruising. The Safeguarding Chair also expressed a view that some of the bruising did not appear to be consistent with falls. Despite this view the Council’s safeguarding investigation could not substantiate the allegation of neglect by carers or say, on balance, how the other bruising to Mrs C’s body may have been caused.
  10. When the Council dealt with the safeguarding investigation it took action to ensure the care providers improved their practices and their reporting procedures for safeguarding. It is not necessary for the Ombudsmen to make a further improvement recommendation.
  11. I can understand how frustrating this process would have been for Mrs B and the other family members who had witnessed the bruising to Mrs C. They felt that
    Mrs C was failed by all agencies. The Council admitted there had been systemic failings and I agree with the Council. On the evidence available, I cannot say the Council failed to monitor the two care agencies, but the care agencies failed to follow their own procedures. The Ombudsmen cannot now determine how the bruising was caused to Mrs C’s body despite the Council admission of systemic failings. However, it is likely these systemic failings caused injustice to Mrs C and caused Mrs B to experience distress.

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Agreed Action

  1. Within four weeks of the final decision the Council has agreed to the Ombudsmen’s recommendation and will arrange for a written apology to be sent to Mrs B in acknowledgement of the injustice caused to Mrs C by the systemic failings it identified. The apology will also acknowledge the distress Mrs B and other family members experienced.

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Final decision

  1. There was fault by the care agencies commissioned by the Council to provide care to Mrs C. The Council took action to ensure improvements were made before Mrs B complained to the Ombudsmen. We cannot add anything more to the investigation.
  2. The Council has agreed to the Ombudsmen’s recommendation. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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