Windsor and Maidenhead Council at fault for delays, and failing to communicate, when unacceptable behaviour threatened a placement

Decision date: 24th September 2019

What happened

Mrs B complained on behalf of her father, Mr C.

Mr C had a diagnosis of Alzheimer’s disease. He also suffered from chronic leg ulcers and arthritis and used a walking stick to assist with his mobility.

The council assessed Mr C’s needs and fully funded the care home placement where he had lived since January 2017.

The care home carried out a mental capacity assessment. This assessment considered the probability of someone’s being cognitively able to make a specific decision, when they need to. The mental capacity act (MCA) 2005 asks firstly, does the person have an impairment and does that impairment make them unable to make a specific decision when they need to by reference to 4 further questions, related to whether the person understands the decision to be made, the information provided, can retain the information for long enough to consider the pros and cons, and grasps the likely consequences of their decision. The outcome was that Mr C had capacity in relation to agreeing to his placement and matters relating to his care and support and therefore could make his own decisions and be responsible for any consequences. He asked the care home to ensure his relatives were kept informed.

A year later, in early 2018 the care home started to record concerns about Mr C’s behaviour, relating to his verbal abuse towards staff and the use of his walking stick to try and strike staff or objects when he felt frustrated. It was noted that Mr C often became frustrated if he could not find certain objects, was unable to contact his children or did not like the food. His frustration was related to his belief that staff were not assisting him adequately to solve these problems.

By the end of June 2018 Mr C’s behaviour had escalated. He deliberately set off a fire alarm to gain attention when he did not like the food on offer. Other incidents recorded that Mr C had made rude comments, sworn and refused help from specific carers.

The care home held a meeting in July with Mr C and his daughter Mrs B regarding his behaviour and attitude towards staff. The care home manager explained that Mr C’s racist views and comments were unacceptable and warned him that his placement would be terminated if he continued to behave in this way. The manager went on to state that Mr C waving his walking stick aggressively at staff was unacceptable, but Mr C responded that he did not believe staff would find this threatening. He did not acknowledge that he was frequently racially abusive.

The meeting recorded the seriousness of his behaviour and the consequences, should it continue and recorded that Mr C and Mrs B apparently understood that this was the case.

Following this meeting the manager contacted the council to request a review of Mr C’s placement as well as revising Mr C’s internal care and support plan to include his kknown ‘triggers’, and the actions staff should take to minimise them.

The care provider’s policy for managing behaviours was not a bad one. It said that staff should focus on identifying and minimising the triggers which may have a negative impact on a resident’s behaviour. The policy stated unacceptable behaviour is usually triggered by an unmet need or a symptom of the resident’s condition. The policy encourages staff to focus on the causes rather than the action of the behaviour. The policy gives guidance on assessing and managing concerning behaviour, as well as the steps staff should take to record and deal with individual incidents.

It took the council 10 weeks to follow up the request for a placement review; however, when contacted on the 1st October 2018 the manager reported a review was no longer necessary as Mr C had moved to the dementia unit during renovations.

It is unclear why the manager said this as in the 18 weeks to 20 November, following the July meeting about Mr C’s unacceptable behaviour 37 further incidents were recorded involving Mr C, including verbal abuse of staff related to race or ethnicity.

The incident that appeared most critical in determining Mr C’s placement happened on 14th October 2018. Mr C requested help. When carers went to assist it is reported Mr C had placed a full bottle of urine on the end of his walking stick and was waving it around spilling urine on himself and carers.

Eight days later, on 22nd October 2018, the care home contacted the council to inform them of the contractual termination to Mr C’s placement. It took the council more than three weeks to contact Mrs B. On 13th November 2018 the council advised Mrs B that Mr C had been asked to leave. Mrs B stated she had already heard this information from carers at the care home and was angry that she had found out this way, rather than through official channels. Mrs B was also upset that the delay in informing her had shortened the period she had to review potential new placements for Mr C. On 18th November 2018 the care home manager spoke to Mr C’s son Mr D and two days later met him in person, to discuss his father’s unacceptable behaviour, including the incident with the walking stick and urine bottle that had led to the decision to terminate Mr C’s placement. Mr D was informed that the care home would continue to accommodate and care for Mr C while a new placement was found. On 26th November 2018 Mr C was moved to another care home. He died shortly afterwards within 3 months.

Mrs B complained to the care provider about the decision to terminate Mr C’s placement. Mrs B specifically highlighted problems with the quality of care given to Mr C and the fact she had heard rumours of Mr C’s eviction from carers weeks before the council contacted her. Mrs B was unhappy that the care home had not formally notified her of the placement termination or made attempts to meet with her or her brother to discuss problems relating to Mr C’s behaviour in order to better manage Mr C’s needs and prevent termination of his placement. The care provider responded to Mrs B’s complaint. They referred to the meeting in July 2018 where they had outlined the consequences if Mr C’s unacceptable behaviour continued. The care provider also explained it had served notice to the council rather than Mr C directly as the council funded the placement. The care provider did not uphold Mrs B’s complaint.

Mrs B was dissatisfied with the response and replied stating that there had been no formal meeting about Mr C’s behaviour, just a simple conversation, and that the reason she gave for Mr C setting of the fire alarm had not been investigated and that her finding out about the placement termination from carers was unacceptable given that staff had not reported any problems when Mr C attended his memory clinic appointment in October 2018. The care provider replied stating it had discussed with Mrs B the impact of her father’s behaviour on other residents and stated it had acted appropriately by sending notice to the council as they were the funding authority. The care provider explained that they had advised Mr C of the reasons why his placement would be ending, however, he had declined to let them inform Mrs B. Given Mr C had the capacity to make decisions of this nature, the care provider needed to respect Mr C’s wishes.

What was found

Delays in council communication

The LGO found the council was at fault for not responding in a timely manner to the request for a care review. The LGO stated that the council’s delay in acting was a fault as it left the care home to manage Mr C’s unacceptable behaviour alone, even though it was the council who had a duty to ensure Mr C’s needs were met appropriately.

The LGO also found the council was at fault for not contacting Mrs B or Mr D when it received the notice that their father’s placement was ending. The council accepted that it did not engage with Mr C or his family to try and resolve the issues and maintain his placement. The council acknowledged that the lack of time it gave Mrs B to research new placements caused her distress that could have been avoided and they will reiterate to staff about the importance of informing and involving individuals’ families.

Incomplete care home records

The LGO reviewed Mr C’s care and support plan that listed actions staff should take to minimise and manage unacceptable behaviour. The LGO concluded that there was adequate information recording Mr C’s behaviours but limited strategies listed to aid staff in managing and minimising them. The care home had addressed how to manage Mr C’s dislike of the food available but not how to respond to problems relating to his personal care or contact with his family.

The LGO found the care home at fault for not recording all incidents involving Mr C’s behaviour on separate incident forms and following their procedures to notify family of each incident. The LGO concluded that because of this Mrs B and Mr D may have not known the full extent of their father’s unacceptable behaviour and were then confused by the home’s decision to terminate the placement. The LGO considered the existing incident reports and accepted that the home’s decision to terminate the placement was inevitable as it was no longer meeting Mr C’s needs. Staff had the right to work without receiving verbal or physical abuse; the home had a duty to provide staff with an environment which fulfilled their rights.

The LGO noted that the care home records were inadequate. The meeting minutes did not include sufficient details to determine what was said by whom or that Mr C and his family appreciated the consequences of his continued unacceptable behaviour. The LGO recorded that the council were the funding authority and they should have been involved in meetings where the risk to Mr C’s placement was discussed.

Agreed Outcomes

It was not possible to remedy any injustice to Mr C hence the LGO made recommendations to remedy the injustice Mrs B had experienced and to improve the council’s and care provider’s procedures.

The LGO reminded the council that it is responsible for all services it commissions. To remedy the injustice to Mrs B the council were instructed to make an apology and pay £200 for the distress and uncertainty caused by not properly liaising with her when her father’s placement provider served notice to end the placement.

To prevent this situation recurring the council were to ensure all staff working in adult social care were reminded of the need to fully involve family / interested parties in any key decisions. The council should work with all care providers it commissions to ensure appropriate systems to record information are in place and to ensure that the council attends all meetings where discussions about residents’ placements are taking place.

Points for the public and for Health and Social Services

  • The responsibility for managing unacceptable behaviour falls on both the council as the funding authority choosing to rely on a purchased placement, and the care provider, who needs to be alert to strategies and the concept of what is or is not within the person’s power to control.
  • The council should support the care provider, be actively involved in meetings and make sure everyone involved is fully aware of the consequences should the unacceptable behaviour continue. Even if capacitated and simply stubborn, people cannot really be said to be being given a chance to make an informed decision if they are not told the legal truth that no provider has to keep them forever, if they present as an unattractive prospect, in terms of duties to staff and other residents.
  • This case highlighted the need to keep full clear factual records that could be used at a later date to clarify who said what and when. Therefore, making clear what that person’s understanding of the situation was and that they understood how the information would affect future decisions, was essential – Mr C’s understanding, which was shown to be less than 100%, unless he was just being bloody-minded about the effect of waving his stick at people and being abusive, not just his relatives.
  • The importance of clear communications with all parties is crucial for preventing misunderstandings and the breakdown of working relationships. However, this causes a dilemma when the client has capacity to make decisions and specifically states that others involved should not be informed. It’s useful for a provider to be able to say to a client taking that stance that his family – still counting as carers, if visiting and providing emotional or practical support – do have a legal right to be involved in care planning matters. That is usually enough to achieve acquiescence at least on the part of the client with some latent sense of shame at his or her behaviour, seen objectively.
  • It is fascinating to us that this report makes no mention of the Human Rights Act, which is directly applicable to all private organisations providing publicly funded care to council clients. The article 8 right to respect for a person’s home and relationships is not a right to stay in a home forever, nor a right to override a provider’s contractual right to terminate a service contract that it simply wants to be rid of now, but it does connote a conscientious duty to try to resolve issues about behaviour, which the home did not live up to in this situation. Then again, neither did the council, even more affected in everything it does, by the Human Rights Act!

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The full Local Government Ombudsman report of Windsor and Maidenhead County Council’sactions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-017-393