Combined decision date: 20 November 2019
This complaint was investigated by a person working on behalf of both the NHS ombudsman and the local government ombudsman and it looked into failures by not only Surrey County Council but also the Devon Partnership NHS Trust, Pembroke Surgery, Devon Clinical Commissioning Group and the Royal Devon and Exeter NHS Foundation Trust and Torbay and South Devon NHS Foundation Trust
Ms X complained to the council about the care her sister Miss Y was receiving. The period in question was before the coming into force of the Care Act.
Over the period in question Miss Y received care in a care home, which was paid for and overseen by the council but facilitated in a different geographical area. Miss Y’s overall care was provided by her placement provider alongside interventions from several hospital trusts and her GP.
Miss Y had severe learning difficulties and is not able to communicate verbally. She had severe behavioural issues and complex physical health needs. Miss Y needed 24 hour supervision.
She had a diagnosis of bipolar disorder, (a mental health condition) albeit contested by Ms X, and council records from 2013 recorded Miss Y as having possible ‘autistic traits’.
Due to delays in service and follow through inadequacies, or any apparent grasp as to why it might matter, Miss Y had not been formally assessed for an autism spectrum disorder (ASD).
Up until 2013 Miss Y had been living at a specialist residential placement funded by the council. This facility was due to close and residents moved to supported living on the same site with the same carers. A best interests meeting was held; all parties agreed the move to supported living was in Miss Y’s best interests. In July 2013, the Council carried out a social care assessment for Miss Y as part of the transition process. This found Miss Y had “a profound learning disability with autistic traits.”
In November 2014 the care home asked the council to complete a care review for Miss Y ahead of her move. It took the council three months to do so and they agreed Miss Y needed a new assessment to facilitate a support plan. The council then took another four months before a new needs assessment was done by which time Miss Y had moved and been in supported living for a month. She would have had to become a tenant of a housing provider, to take up tenure, although the complaint report does not explain how this was organised with lawful authority.
In June 2015 Miss Y had moved into assisted living. This move had been planned for many months; however the council had not put in place specific plans for the transition, although the care home provider stated it did not foresee any major problems.
The Council said Miss Y’s transition had been carefully managed. It said “a series of assessments, including risk management assessments, and devised care plans” had been completed as part of this process. However, the joint investigator found no evidence of these documents in the Council’s records or those of the service provider that assumed responsibility for the care home (shortly before it became assisted living) in March 2015.
Within eight weeks of moving Miss Y’s behaviours escalated. Miss Y had difficulties with sleeping, manic behaviour, and changes in eating patterns for which her service provider sought advice from Miss Y’s GP.
Throughout this period the local NHS intensive assessment and treatment team (IATT) were involved with Miss Y’s medication management alongside her GP.
During this time Miss Y was being treated to manage her diagnosed bipolar disorder; although the suggestion of ASD had been made many years earlier, no assessment to confirm this had ever been provided.
The changes to Miss Y’s medication appeared not to address her symptoms and eventually she reached the point in August 2015 where carers thought Miss Y needed detaining under the Mental Health Act (MHA).
Placement 2 contacted the IATT again on 10 August 2015 to discuss Miss Y’s care. A manager from the placement reported that Miss Y’s “behaviours are highly erratic, unable to settle, she has a distressed look and an increased appetite” but said her sleep pattern had improved. The following day, an IATT officer also spoke to the day centre. He noted Miss Y “continues to present as highly agitated, unable to settle or calm.” The following week a manager from Placement 2 contacted the IATT team again to report that Miss Y’s behaviour had deteriorated following a reduction in her Risperidone medication and that she had barged another resident, leading to that resident being admitted to hospital. An IATT consultant noted Miss Y was experiencing a hypomanic episode. This led the consultant to
stop Miss Y’s Risperidone medication and commence her on Olanzapine (an
alternative antipsychotic medication). This appears to have had little effect and a manager from Placement 2 contacted the IATT the following day to advise that the placement “simply cannot cope with [Miss Y’s] behaviour as there are serious concerns for [Miss Y] and the other residents’ safety.” The Placement 2 manager also contacted the Practice, reporting “Patient’s condition worsened – manic, has already injured another resident who had to go to hospital, is stripping staff’s clothes off”. By 24 August 2015, the Devon Trust’s notes record that Miss Y was “covered in bruises and has a swollen hand” and had damaged fittings in her room. On 24 August 2015, a new consultant from the IATT reviewed Miss Y. He wrote to the Practice to express the view that Miss Y’s care package was approaching crisis point. He suggested Miss Y’s escalating behaviour may be an “autistic crisis”.
In September 2015 Miss Y was sectioned under the MHA; however, the assessment Miss Y received on admission to the mental health facility identified that she had a broken hip. Miss Y was then transferred to the main hospital for surgery. Miss Y stayed under the care of the hospital who operated on her hip until February 16 at which point, she was transferred to another physical health hospital Trust.
Miss Y spent a further two months with them until April 2016 when she moved to a new out of area placement (a care home again).
Despite all the organisations involved and Miss Y’s injuries, no one made any safeguarding referrals.
Ms X complained that:
- The council failed to provide Miss Y with appropriate social care input and did not manage her transition properly.
- The council did not follow up on Miss Y’s autistic traits with a formal autism assessment and the hospital trust did not review Miss Y’s diagnosis as suggested.
- The IATT also failed to assess Miss Y for autism leading to Miss Y being prescribed inappropriate psychotropic medication and the medication Miss Y did receive was inappropriately monitored.
What was found:
The LGO considered the council’s management of Miss Y’s care planning. Local authorities are required to review a new service user’s care plan once they start receiving care. Government guidance requires the frequency of ongoing reviews to be “proportionate to the circumstances of the individual”. It was regarded as good practice for a council to carry out a review within 4 to 6 weeks after a service starts and at least yearly. The council were not able to find most of Miss Y’s records for the period before she moved into supported living. Although the council did review Miss Y there is no evidence to suggest they completed the re-assessment that the review stated was needed. Therefore, Miss Y went through the transition to supported living with no specific arrangements in place. The council eventually completed this assessment four weeks after Miss Y moved, yet the paperwork was virtually identical to the review carried out six months previously and did not contain information relating to how Miss Y was adapting to the new living and care arrangements. The council was judged to be at fault for lack of detailed planning to support Miss Y’s transition.
The LGO were unable to be certain that this lack of planning impacted on Miss Y’s behaviour as the closure of where she was living meant that she needed to move in any event, and therefore some degree of stress from the change was inevitable. However, the LGO acknowledged that the lack of council planning most likely contributed to Miss Y’s distress and caused uncertainty for Ms X.
The LGO acknowledged that Miss Y’s healthcare professionals were aware that autism was a possible diagnosis. Given this feature, alongside Miss Y’s behaviour and clinical history, the LGO found the mental health trust at fault for not at least considering ASD alongside Miss Y’s current diagnosis, and for not promptly arranging a formal autism assessment for Miss Y.
The LGO was unable to speculate what the outcome of Miss Y’s autism assessment might have been but accepted that the fault in not carrying out this assessment would have significantly affected the outcomes of Miss Y’s care; specifically in relation to the medication Miss Y received.
The LGO investigated whether there was a collective failure to investigate Miss Y’s escalating behaviours. The LGO found up until October 2014 Miss Y’s condition had been stable. In December 2014 Miss Y was noted to have a change in behaviour patterns and it was noted that the IATT would need to review her medication. They did, and no changes were deemed necessary. Due to problems sleeping, Miss Y was prescribed sleeping medication by her GP. The sleeping medication made no difference to Miss Y so her GP changed her antipsychotic medication and made another referral to IATT. Prolonged communications were exchanged between Miss Y’s carers, her GP and the IATT who then changed Miss Y’s medication again.
The LGO was satisfied that records were sufficient for healthcare professionals to recognise her pattern of deterioration. The LGO was happy that Miss Y received appropriate care and medication for her primary diagnosis of bipolar disorder. However, when it became clear that the strategy of providing Miss Y with medication was ineffective other possible causes for Miss Y’s symptoms should have been explored. the Devon Trust should have arranged an Autism assessment for Miss Y. It was also open to the Devon Trust to seek an urgent second opinion with regards to Miss Y’s care. However, it did not do so. Miss Y’s condition continued to deteriorate until she was sectioned. This was evidence of fault by the Devon Trust. This represented a missed opportunity to explore other possible interventions for Miss Y and caused uncertainty and distress for Ms X.
Whilst in hospital under Mental Health section, the investigator considered whether the continued medication was properly monitored. He found that the decision, in November 2015, not to reduce Miss Y’s medication while her hip was healing was reasonable, but that this decision and similar decisions taken after this point should have been made on the basis of full medication reviews. He found no evidence of a medication review in the Devon Trust’s records for the period from October 2015 to Miss Y’s discharge in April 2016. This is fault, although it did not cause injustice as such, because the Devon Trust consultant who eventually reviewed Miss Y in March 2016 thought that it would not be appropriate to change her medication until her condition had been stable for several months.
Section 42 of the Care Act 2014 states that a local authority 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. The local authority must also decide whether it or another person or agency should take action to protect the person from abuse or risk. Statutory guidance on the issue says that workers across all the organisations involved in Miss Y’s care needed to be vigilant about adult safeguarding concerns. The guidance recognises that early information sharing is key to the adult’s welfare.
The investigator does not appear to have been able to get to the bottom of why the mental health trust did not raise safeguarding concerns to the council. He was also concerned that both Miss Y’s placement and her GP also failed to raise safeguarding concerns. Miss Y’s records from each of these organisations revealed plenty of concerns over the risk she posed to herself and others, and this should have prompted a safeguarding referral. The LGO found the council the hospital trust and the GP at fault for not raising safeguarding concerns.
Other health issues
Ms X asked the LGO to investigate how Miss Y’s health may have been affected by other conditions such as gluten intolerance. The LGO found that the GP had acted appropriately when considering Miss Y’s digestion issues, however found that the GP was at fault for failing to undertake a physical health check to determine whether there was an underlying physical cause.
However, the LGO was not convinced that the GPs failure to carry out a physical health check had had a significant impact on Miss Y’s care. Miss Y had no symptoms that would have suggested a gluten allergy, which can be tested for, as opposed to gluten intolerance which is difficult to test for with someone with communication difficulties, apparently.
Ms X asked the LGO to investigate Miss Y’s medication throughout her time in hospital. The LGO concluded that Miss Y’s medication was not inappropriate given her diagnoses and environment throughout this time.
A best interests meeting of professionals and Miss X had concluded that using onesie suits at night for Miss Y was the best option, considering the health risks from her tendencies involving her own faeces. Placement 2’s view was that onesie suits had been in use for Miss Y since the 1990s and subject to multidisciplinary review over many years. Nevertheless, the investigator found that Placement 2 should have completed a new mental capacity assessment in accordance with the provisions of the MCA to reflect Miss Y’s recent change of circumstances – a move into independent living, not a care home, where there is a 24 hour duty of care and managerial control that is based on that duty – whereas the nature of the responsibility is different in independent living. This would have allowed for a fresh decision to be taken on whether use of the onesie suits was in Miss Y’s best interests. This was fault by Placement 2 (acting on behalf of the Council), although the investigator did not think that it led to injustice, because it was clearly in Miss Y’s best interests.
Paperwork records of communications between Ms X and the council showed Ms X had indicated she was satisfied with the proposed arrangements.
The LGO did not consider the length of time it took the council to respond to Ms X’s complaint unreasonable (it was a complex complaint involving many organisations) but did find the council at fault of failing to arrange a co-ordinated response to Ms X. The LGO concluded that Ms X was entitled to one co-ordinated response from the council rather than individual responses from the various organisations (council, GP and hospitals trusts) involved.
To remedy the situation
The council, the hospital trust and the GP were asked to write to Ms X and Miss Y to apologise for:
Failure to make a safeguarding referral: all three are to pay Miss Y £100 each to compensate for the missed opportunity to reduce her risk and the council to pay £100 to Ms X for the distress this caused.
For failure to manage Miss Y’s transition between placements the council was asked to pay Miss Y £200 in recognition of the impact this fault had on her, and to pay Ms X £100 for the distress this uncertainty caused.
Due to the hospital’s failure to undertake regular medication reviews for Miss Y the hospital was asked to pay Ms X £100 for the uncertainty this had caused her.
For their failure to organise and Autism assessment they were asked to pay Ms X £200 for the distress this caused.
Points for the public and for Health and Social Services
Points for the public and for Health and Social Services
- The local authority is expected to review all clients on their caseload within 4 – 6 weeks of a change in care provision and at least yearly thereafter, under the Guidance. This expectation helps prevent changes in a person’s wellbeing going un-noticed and gives an early warning of potential problems, giving the local authority a chance to adapt what it has commissioned, and act on the issues and to minimise distress to clients and their carers.
- Safeguarding concerns are of the utmost importance. The policies and procedures in place within organisations should be followed and concerns raised. Raising potential concerns as early as possible is critical to minimise potential problems and maximise safety of vulnerable individuals.
- Much legislation and guidance exists for organisations when dealing with service users who are unable to make decisions for themselves. The Mental Capacity Act 2005 (MCA), via a mental capacity assessment should ensure that actions taken by organisations are in the individual’s best interests and in NHS terms, should therefore provide a clinical reason for the treatment detailed in an individual’s care plan so that the balance sheet approach required by caselaw is fully honoured.
- There is guidance specifically relating to people with learning difficulties and the use of medication in the NHS England document on stopping over-medication of people with a learning difficulty, autism or both. The National Institute for Health and Care Excellence (NICE) guidelines covering people with challenging behaviour and learning difficulties emphasise taking into account underlying physical and mental health problems when assessing challenging behaviour.
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