Ombudsman’s findings against Essex County Council (12 004 807) and Suffolk County Council (12 013 660)

Background

Ms P lived in a care home in Essex; however her care home placement was funded by Suffolk CC (the ‘SCC’) as her authority of ordinary residence (and arranged by the Norfolk and  Suffolk NHS Trust (‘NST’) as delegates of the social services obligations of Suffolk). Further, the NST employed the community psychiatric nurse who contacted the police initially regarding the complaints in question.  The North Essex Trust (the ‘NET’), acting for Essex CC (the ‘ECC’), was responsible for co-ordinating any safeguarding investigations where the allegations concerned an adult living in Essex with mental health problems.

At the beginning of September 2010, Ms P told a member of staff at her care home that she was concerned about her money, prompting concerns about potential financial abuse from her sister (Mrs S) who was helping to manage her finances. After Ms P’s advocate visited her to discuss these concerns, the Care Home Manager sent a safeguarding alert form to Essex County Council. This outlined Ms P’s concerns, the arrangement with Mrs S regarding access to Ms P’s bank account, and the fact that large sums of money had been withdrawn from Ms P’s bank account in recent years. The ECC only forwarded this form to the North Essex Trust four weeks after the Care Home Manager raised the safeguarding alert. A second safeguarding alert form contained extra information that included references to the ‘emotional abuse’ suffered by Ms P when Mrs S persuaded her to change her meals, Mrs S’s financial history and Ms P’s request for a solicitor to help her to manage her money after it was established that Ms P lacked the capacity to manage her finances.

A strategy meeting later went ahead, and was attended by the Care Home Manager, the CPN and the Social Worker. Mrs S neither attended, nor knew about the meeting. The meeting highlighted visible risks of further financial abuse, as well as concerns of emotional abuse and bullying by Mrs S. After the strategy meeting, the Social Worker wrote to Mrs S to inform her that she was prohibited from contacting Ms P or other members of staff at the care home whilst the investigation was pending.

Mrs S then complained to the NST, demanding more information about what she had done wrong, asking why the CPN said she was under police investigation and querying why she was not invited to the safeguarding meeting. As part of the investigation of Mrs S’s complaints, a community mental health team manager from the Norfolk and Suffolk NHS Trust (the ‘NST’) carried out an informal safeguarding investigation which drew upon more evidence of Ms P’s finances. The investigation found no evidence of financial exploitation, supported Mrs S’s justifications regarding certain withdrawals from Ms P’s bank account and concluded that the amounts paid into Ms P’s current account generally tallied with the amounts withdrawn.

In April 2010, the Associate Director for Clinical Governance at NST responded to Mrs S’s complaint, but Mrs S was not happy with the response and complained to the Health Ombudsman in June 2011. The Health Ombudsman asked NST to provide a further response as the first letter was inadequate, but Mrs S was unhappy with the second response and complained again in January 2012. The Health Ombudsman then agreed to undertake this joint investigation in February 2013.

Findings

The Ombudsman made a finding of maladministration given the way that the ECC and NET dealt with the safeguarding investigation. There was also maladministration as a result of the manner in which NST and SCC managed Mrs S’s complaint. Both sources of maladministration were held to have caused injustice to Mrs S.

1.     ECC and the NET

The NET should have followed the national guidance on safeguarding and local safeguarding policies and procedures. By failing to accord with the ‘No Secrets’ guidance (a national guidance making adult safeguarding a statutory responsibility of a local authority), findings of maladministration were made against NET, which were then translated into the same findings against the ECC (because it had delegated responsibility to the NET in a partnership agreement).

(a)    Delay in sending the safeguarding referral form to the appropriate team

The ECC’s adult social care team did not pass the safeguarding referral form to the NET until 4 weeks after receipt. This was in breach of ECC’s safeguarding guidelines which required them to assess the case within 4 hours of receiving the form and then decide on an initial course of action. Given that Mrs S knew about the allegations at this stage, the delay meant that the allegations were pending for longer than they should have been.

(b)    No risk assessment

As the Social Worker had not carried out a risk assessment and reviewed it during the safeguarding investigation, the NET had failed to follow its own published procedure for safeguarding.

(c)    Failed to investigate the allegations properly and making findings of fact

The safeguarding investigation had failed to adequately establish the facts, assess the needs of the vulnerable adult and make decisions about the appropriate action to be taken against the alleged perpetrator. The first Team Manager had wrongly believed the NET’s role was finished once his team had passed the referral to the police, as it was the responsibility of other agencies to resolve the remaining actions on the safeguarding plan. Given that the police had taken no action after this, it meant that allegations against Mrs S about ‘insidious bullying’ and ‘emotional abuse’ were not investigated or followed up.

(d)    Inadequate liaison with the police

By not liaising with the police once the safeguarding investigation had closed, the NET had breached government guidance on safeguarding and the inter-authority advisory protocol issued by the Association of Directors of Adult Social Services (‘Safeguarding Adults’). As dictated by the ‘No Secrets’ guidance, it was the host authority’s responsibility to coordinate the investigation effectively by communicating with all of the agencies involved in order to determine the facts. As the police did not proceed with an investigation, the allegations remained unconsidered and there were no findings of fact.

(e)    Failure to involve Ms P or to consider instructing an IMCA

There was no evidence that the Social Worker, or any of the agencies involved, consulted with Ms P during the safeguarding investigation. This was in breach of the organisation’s own procedures and No Secrets and Safeguarding Adults.

The Mental Capacity Act 2005 gave councils and the NHS powers to instruct an Independent Mental Capacity Advocate (‘IMCA’) where a person lacks capacity and measures may need to be put in place to protect the adult from abuse. As part of the safeguarding process, professionals decided that there should be an application to the Court of Protection, and at this point the co-ordinating organisation should have considered whether an IMCA would have been of benefit to Ms P during the safeguarding process. By not doing so, the NET had breached government regulations.

(f)     The safeguarding action plan was ineffective, disproportionate and lacked a ‘review’

The lack of a co-ordinated review of the safeguarding plan here was not in line with ‘No Secrets’. For example, there was no co-ordinated review of Ms P’s safeguarding plan to see if the measures were necessary and continued to be appropriate and proportionate; the NET closed the investigation without checking to see whether the recommended actions had been completed, and it failed to co-ordinate the end stage of the process. The actions endorsed by the NET in advising Mrs S not to contact her sister were not only disproportionate, but also ill-conceived, with the risk of financial abuse of Ms P not actually reduced by the visiting ban. This punishment was disproportionate without first finding out whether there was to be a police investigation to establish the facts and, if so how long that investigation would take.

2.     SCC and NST

Although the NST was not responsible for co-ordinating the safeguarding investigation (as the body funding Ms P’s case), the ‘No Secrets’ guidance dictated that it should have participated in, and co-operated with, the investigation.  This included raising concerns about any protective measures at the time. The NST acted with maladministration by agreeing to the protection measures in the safeguarding plan for the same reasons used against the EC and NET under the previous section (“The safeguarding action plan was ineffective, disproportionate and lacked a ‘review’”). The SCC also acted with maladministration because it had delegated social services responsibilities to the NST under a partnership agreement, but retained liability for them under section 75 of the NHS Act 2006. Despite having delegated the responsibility, owed to the resident under social services functions, via a partnership agreement, the legal responsibility remained with SCC, so that they were responsible for the maladministration on the part of the NST. This was because of the NST’s role as commissioning/placing authority was as an implicitly necessary participant in the safeguarding process (not as the co-ordinating body).

(a)    Complaint handling

In breach of its complaints regulations and its own complaint handling procedures, the NST had failed to acknowledge Mrs S’s first letter of complaint and did not work with the NET to provide a joint complaint response. When the NST finally replied, the response failed to explain why Mrs S was wrongly informed she was under investigation by the police, and it failed to sufficiently address the emotional abuse of Ms P. The reference to an allegation of ‘physical abuse’ in the NST’s second response was considered to have been included as a result of a drafting error, and references to emotional abuse were not corroborated by any adequate investigations into them.

Remedies

Recommendations to the North Essex Trust and Essex CC

–           Write jointly to Mrs S to acknowledge the maladministration and apologise for the injustice suffered.

–           Pay financial redress of £1000 jointly.

–           Prepare an action plan that outlines what they have done to ensure that they have learnt from the aforementioned failings, and explains how they plan to avoid a recurrence.

–           [Only to the ECC, specifically in relation to the delay in sending the safeguarding referral form to the NET] Prepare an action plan that outlines what they have done to ensure they have learnt from the aforementioned failings, and explains how they plan to avoid a recurrence.

Recommendations to the Norfolk and Suffolk Trust and Suffolk CC:

–           Write jointly to Mrs S to acknowledge the maladministration and apologise for the injustice suffered.

–           Pay £250 jointly for Mrs S’s distress caused by their maladministration in the safeguarding investigation; and a further £250 jointly for the distress to her from their poor complaint handling.

–           Prepare an action plan that outlines what they have done to ensure they have learnt from the aforementioned failings and explains what they have done and/or plan to avoid a recurrence.

COMMENT

This saga is an object lesson in what happens when authorities fail to understand what they can and cannot legally contract out, and through what sort of legal mechanisms – once again, lack of legal literacy amongst sector management, it would seem.

Suffolk CC acquired a high profile for saying that they had decided to contract out social work functions, in about 2012, and yet it is not yet lawful to do so, and this needs to await the Care Bill being brought into force (other than outside of the few pilots for independent social work practices, that were commenced at this point).

It is lawful to use an NHS body, or for an NHS body to use a council’s commissioning service (contracting, in this context) as a professional service, under long-standing separate legal provisions.

However, it has also been lawful since 1999, to delegate one’s social work functions (and safeguarding is one of them, because in form, safeguarding investigations and responses are only assertive assessment and care planning functions, not a separate statutory function in its own right) under a s75 ‘partnership agreement’ (now s75 of the NHSA 2006). This mechanism, however, makes it quite clear that when a council and health service body take this approach, the delegator remains liable for any public law mistakes by the delagatee, and this report makes a finding that the same principle applies to maladministration findings by the Ombudsman, as one would expect.

Now that the Better Care Funding scheme virtually requires councils to undertake proper integration mechanisms if they want money from the fund to supplement their straitened financial situations, it will be interesting to follow whether they understand the obvious and pressing need to train staff from a ‘partner’ organisation under a s75 agreement, in the law relating to the function that has been delegated. If not, insufficient or the wrong people will get the Care Act training, and no-one will be sure whether their complaint is against a nurse acting as a nurse, or a nurse with a social work hat on for the day or task in question….

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