Decision Date: 4th September 2019
Mrs D complained on behalf of her parents, Mr and Mrs F.
Mrs F lived with her husband Mr F. Mr F had a long-standing brain injury following an accident. Mrs D said this affected his emotional responses as well as his ability to make rational decisions.
Around 2010, Mrs F was diagnosed with Alzheimer’s disease, a type of dementia. Mr F became her carer. Mrs F received a small amount of privately funded care in her own home. However, Mr F took on day-to-day responsibility for her personal care, medication, keeping her company and making sure she was safe.
From 2015, Mrs F’s daughters and others involved in her care started raising concerns about Mr F’s ability to care for Mrs F. They were concerned that, because of the effects of his brain injury and the general strain of caring for Mrs F, Mr F was no longer able to cope. They worried he was unintentionally neglecting and abusing Mrs F as a result.
Between November 2015, and Mrs F going into residential care in January 2017, the Council received 11 concerns and safeguarding referrals about risks to Mrs F. The concerns fell into three main areas:
- Neglect, because of difficulties ensuring Mrs F wore incontinence products properly, and keeping her and her environment clean following double incontinence. This included re-dressing in soiled clothes, not bathing, leaving urine and faeces on doors and handles. Paragraph
- Risk of physical harm through rough handling by an exasperated and distressed Mr F, poor hydration, medication which Mrs F did not have capacity to use, being left out for her to take herself, being left alone in the house two nights a week while Mr F went to play bridge or in the car when they went shopping, being left to run her own baths where there was a risk of scalding.
- Risk of psychological abuse through witnessing Mr F’s frequent distress and through being left alone at home or in the car.
The Council did not investigate these concerns. The Council’s safeguarding team decided the information did not ‘meet the threshold’ for safeguarding enquiries under section 42 of the Care Act 2014.
Instead, it asked the social services and NHS mental health teams which had had some involvement with Mrs F to offer further assessments or support to Mr F. The social services team questioned the safeguarding team’s decision, but the decision did not change. Mr F declined further assessment for both himself and Mrs F.
When Mrs F moved to the care home in January, its manager made a safeguarding referral to the Council about:
- neglect, because of her poor personal hygiene including a pad that appeared to have been there for days before she arrived
- physical abuse, because of unexplained wounds which had a bad smell indicating infection;
- emotional abuse, because Mr F had reported Mrs F ate very little, but she had a good appetite in the care home unless Mr F was nearby, when she would stop eating and appear guarded; and
- financial abuse, because of Mr F had allegedly pressured her to sign bank forms despite her not wanting to do so and not having the capacity to understand them.
The Council decided that it would not deal with the allegation of financial abuse as a safeguarding enquiry. It decided instead, that Mrs F’s social worker should work with Mr F, to ensure he understood what he could and could not do. There was no record of how the Council decided to deal with the Home’s concerns about neglect, physical and emotional abuse. However, Mrs F stayed in the care home where she was settled and well cared for, and no longer at risk of such abuse, until she died in April 2017.
Mrs D said that what happened leading up to Mrs F’s move to the care home ruined her relationship with her father. Mrs D was concerned that her mother may have suffered neglect and physical abuse for some time before moving into residential care.
During this time, there were also concerns raised surrounding issues relating to mental capacity and best interest assessments.
Back in February 2016, Mrs D had contacted the Council to raise concerns about Mrs F and to ask for care from social services.
The Council spoke to Mrs F’s community psychiatric nurse (CPN) at the Trust. The CPN considered Mrs F did not have the mental capacity to make decisions about her care but had not assessed this formally.
The CPN also told the Council he recommended a residential care placement for Mrs F, but that her husband would not allow this to go ahead.
Having decided not to start a safeguarding enquiry, the Council asked the Trust to formally assess Mrs F’s capacity to make decisions about her care needs and carry out “a formal best interests meeting with all parties”.
During the visit Mrs F denied any concerns and said she was happy and wanted to stay at home. The CPN did not assess Mrs F’s capacity to decide on her care arrangements and decided there was no reason to arrange a best interests meeting.
There was no record of a mental capacity assessment or best interests meeting until Mrs F went into residential care about a year later. There was also no record of assessments of Mrs F’s social care needs, or Mr F’s needs as a carer, between November 2015 and January 2017, when Mrs F went into residential care.
The Trust discharged Mrs F from its mental health service in June 2016 because her husband had refused further contact with her CPN. The Trust discharged Mrs F without speaking with her on her own, assessing whether she had capacity to make her own decisions about further contact with mental health services, or making a properly considered and formally recorded decision that discharging her would be in her best interests.
Mrs D complained to the Trust and Council in December 2017. Their joint response accepted that what happened should not have happened, and apologised to Mrs D. The joint response also said the two services (CMHT and social care) had learnt from what had happened, improved and put in place a more joined up approach since then.
Mrs D was dissatisfied with this response stating it did not provide evidence that the Council and Trust had put service improvements in place.
What was found
Safeguarding Mrs F
The Council accepted that it should have carried out or commissioned the Trust to carry out a safeguarding enquiry.
Failure to do so over a long period when family and professionals were raising concerns was fault.
Given the serious concerns raised by different people who met Mrs F at different times, the LGO considered it more likely than not that a proper and timely enquiry would have concluded Mrs F was at risk of or experiencing abuse or neglect and resulted in a plan to remove or reduce the risks.
The fault caused Mrs F an injustice of continuing to live in an environment in which she was at risk of, and may have experienced, abuse or neglect for up to a year. The fault also caused Mrs F’s family distress from witnessing the problems she was experiencing but receiving no practical solution despite repeated requests for help. Mrs D’s relationship with her father suffered. This could have been avoided had the Council investigated and acted on the safeguarding concerns in good time.
The Council and Trusts had already apologised to Mrs D, and the LGO considered this an appropriate way to address the injustice, and also made recommendations for further service improvements.
Best interests meeting and Mental Capacity assessment
The concerns Mrs rose since late 2015 should have prompted the Council (or the Trust acting on the Council’s behalf) to offer Mrs F a needs assessment and Mr F a review of his needs as a carer. Failure to do so was contrary to the Care Act 2014 and constituted fault.
Mr and Mrs F could have refused assessments of their own needs, if they had capacity to do so. The LGO considered that it was more likely than not, that Mrs F did not have the capacity to make that decision. So, the Council had a duty to assess her social care needs, unless it made a reasoned decision that was not in her best interests. It could not rely on Mr F refusing to allow an assessment of Mrs F’s needs.
The Council accepted it should have ensured the Trust undertook “time and decision-specific mental capacity assessments, best interest decisions [and] a social care assessment” of Mrs F and a carer’s assessment of Mr F or a review of any earlier carer’s assessments. Failure to do so was fault. A formal best interests meeting would most likely have decided an assessment of her social care needs was in Mrs F’s best interests.
The LGO considered that the Trust discharged Mrs F from its mental health service largely because Mrs F’s husband denied them access. They did so without having regard to Mrs F’s wishes and without formally assessing her mental capacity or considering her best interests. This was fault.
The Council’s and Trust’s faults resulted in further missed opportunities to safeguard Mrs F, to assess and meet Mrs F’s needs and to support Mr F as a carer. It was also possible that Mrs F may have benefited from more mental health support from the CMHT, had it not discharged her because her husband denied access.
Complaint response and service improvements
As part of its response to Mrs D’s complaint, the Trust carried out its own investigation and produced a report into its findings. However, it did not give Mrs D a copy of the report. This was fault.
The Council and Trust held a telephone conference meeting with Mrs D as part of its complaint response. During that meeting, they explained what they had done, or would to, to prevent similar problems happening to others. But they did not confirm this in writing. The LGO also regarded this to be fault.
The Council and Trust wrote to Mrs D at the end of the local complaints procedure, accepting that what happened to her mother and father should not have happened. They also apologised. The LGO considered that the acknowledgement of fault and an apology were appropriate ways to address the injustice of distress and uncertainty to Mrs F’s family.
To prevent similar problems with safeguarding recurring, the Council and Trust agreed to
- Work together to review joint working agreements, internal procedures, guidance, audit tools, training material and any other documents related to safeguarding, to ensure both organisations’ policies and procedures are up to date, in line with relevant law and guidance, and accurately describe both organisations’ responsibilities.
- Publicise any changes to make all relevant internal and external audiences aware.
- Provide evidence to the Ombudsmen that this has been done.
- Provide a copy of an improvement plan due in May 2019 to the Ombudsmen.
- Provide evidence of the monitoring of the effect of the improvements on safeguarding, in the form of a summary of results and any action prompted by the results.
To prevent misunderstandings about the MCA causing problems to other service users, the Council and Trust agreed to
- Ensure all CMHT staff providing social or mental health services are fully aware of the relevance of the MCA to their role.
Points for the public, councils and NHS members of staff
The following principles are well established in the legal framework and case law:
- There is no ‘threshold’ in safeguarding law, other than the statutory wording itself in section 42.
- Councils are the decision-makers about whether there has to be further safeguarding process, and that decision-making function cannot be delegated to a Mental Health Trust or a Hospital Trust.
- Councils are able to CAUSE other organisations such as mental health trusts, hospitals, care homes and care providers, to hold an enquiry, and Councils remain responsible for the quality control of any such outsourced enquiries.
- A person who lacks capacity to make decisions of a given content, can have other less significant best interests touching and restriction type decisions made for them by others, but only in accordance with the Mental Capacity Act and Code.
- A person can be GIVEN rights to make ‘welfare’ decisions for others, but only by legal measures, by a capacitated person: a lasting power of attorney for welfare, for instance; or a person can be appointed someone’s welfare deputy, if they have already lost capacity to make such an appointment. Nobody other than a welfare deputy or attorney acting within scope has the right to dismiss public services on behalf of other autonomous adults. That rule applies to assessment, treatment, acceptance of services etc.
- The decision-maker for MCA purposes is always the person who is about to touch the person to administer some form of intervention or restriction, or pay for one through commissioning and care planning under statute. The decision-maker in that case is not necessarily the relative, but the relative is a best interests consultee.
- In the context of functions under the Care Act, such as assessment or care planning or review or revision, a person’s incapacity is not a factor that detracts from those duties, and MCA thinking is not needed: the statute itself provides a lawful power to THINK, evaluate and make decisions about a person’s needs.
- If a person refuses an ASSESSMENT – ONLY an initial assessment please note, not a review – then that decision can discharge the council from the duty to do the assessment but not if the person lacks capacity to make that decision. And in that context, the council’s staff need to be competent to apply the principles of the Mental Capacity Act, even though nobody is going to touch or restrain the individual – because it would be NEGLECT and incompetence to walk away from a client who was saying NO, if the client was incapacitated. We are not saying negligent, but it would certainly be a matter for Safeguarding itself (or the principal social worker or Monitoring Officer) to SORT OUT.
- The council and the NHS can cross-delegate each other’s statutory functions to each other, but if they are going to do that, THEY MUST ENSURE THAT THE GOVERNING LEGAL FRAMEWORK FOR THE RELEVANT FUNCTION is familiar to the staff who are going to be doing the thinking. It is absolutely commonplace for NHS mental health practitioners to be good on the Mental Health Act but not to think of themselves as dealing with the social care rights of patients, or not to know any CARE Act law, about rights to individuated decisions about the clients’ needs – or any mental incapacity law, and it makes for a disastrous concept of partnership working.
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The full Local Government Ombudsman report of Buckinghamshire County Council’s actions can be found here