Decision Date: 15th November 2019
Mr X complained on behalf of his mother Mrs Y. He complained that two care homes (care home A and care home B), did not meet his mother’s needs.
Mrs Y had dementia. In November 2017 the Council placed Mrs Y in care home A as an emergency short-term placement, for her best interests and to meet her needs.
Care Home A
Mrs Y’s time in care home A was challenging. Notes showed that she became verbally and physically aggressive when staff tried to assist with her personal care, particularly when it came to showering. She often refused to eat or drink, refused to bathe and refused to allow GPs to give her a check up.
In December the GP agreed to contact the mental health team, and the Community Psychiatric Nurse (CPN) visited several days later. They agreed to liaise with the doctor from the mental health team.
In early January 2018 the Council officer allocated to Mrs Y’s care held a best interests meeting at care home A. The meeting concluded it was in Mrs Y’s best interests to remain in the care home as it was unsafe for her to return home, but that Mr X and his family would be welcome to come to the care home to assist with things like showering, or getting her up in the morning.
Circumstances did not improve, so care home A applied for a Deprivation of Liberty Safeguard (DoLS) assessment in mid January. The assessment for that process (best interests assessment) noted that the care provider should work more effectively with the family to address Mrs Y’s needs, but ultimately it advised that the current placement was unsuitable for Mrs Y’s needs.
The Council officer contacted care home A for an update in mid-January. A staff member explained Mrs Y’s behaviour had not improved and her appetite was poor. She was losing weight and they were unable to weigh her as she refused to stand on the scales. Family were still carrying out personal care as she would not let staff assist. The CPN was monitoring Mrs Y weekly and the Doctor had prescribed new medication to try and boost her appetite.
As a result of Mrs Y’s discomfort and declining health, and the care home struggling to manage her care, Mrs Y was moved to care home B in late February 2018.
Care Home B
After her admission, Mrs Y’s behaviours escalated; she was spending more time in bed, was refusing personal care and medication and was physically aggressive towards care staff. Mr X and his family were continuing to support Mrs Y with bathing and showering.
Mrs Y had numerous visits and assessments from GPs, mental health workers and other teams. The doctor from the mental health team had visited and in his professional opinion Mrs Y was still inappropriately placed. The Quality Team raised concerns about the quality of records completed by the care home as there was a lack of ongoing record keeping, particularly about Mrs Y’s current difficulties.
In May, care home B contacted the Council to request a review. It reported it was unsure what else it could do to support Mrs Y. The Doctor from the mental health team had visited and recommended a specialist hospital admission. “The Doctor had increased Mrs Y’s medication but felt Mrs Y needed nursing care as her condition had progressed to advanced dementia. The care home said Mrs Y required support from three to four staff members.”
The Council found a bed in a unit for those with challenging behaviours which assessed Mrs Y and felt it could meet her needs. Mr X did not accept the referral as he said he did not want Mrs Y moved around or moved somewhere, unless he had seen it.
In June, the Council closed a safeguarding referral from the home itself, because it thought that the problem was really a dispute about a delay in a review or re-assessment rather than a safeguarding concern. The GP also raised a safeguarding concern. The social worker spoke to the mental health team and arranged to visit. The safeguarding team closed the referrals as it considered this was a care management issue.
The Council had screened Mrs Y for continuing health care (CHC) in June, but she did not meet the criteria. The staff at care home B stated they were no longer managing to meet her needs. Mr X had yet to visit alternative providers. The social worker explained if a placement decision was not made soon Mrs Y may need to be moved to a temporary placement in her best interests or alternatively, the mental health team Doctor may decide to detain her under the Mental Health Act for a period of assessment in hospital.
By June Mr X had visited a number of places but was not happy with any of them. He considered Mrs Y did not need nursing care as she was now being more co-operative with personal care. The care home reported Mrs Y’s behaviours were a bit better but they were still struggling with certain aspects of her care. The Doctor still advised that Mrs Y needed nursing care.
In late June 2018 the Council held a multi-disciplinary team meeting with Mr X, the care home and the mental health team Doctor to complete a continuing health care (CHC) decision support tool document (to assess whether Mrs Y now met the criteria to receive NHS funding for her care if her needs were identified as constituting a primary health need).
The care home considered Mrs Y’s behaviour had improved to a level they could manage with support from the mental health team. The DST exercise concluded Mrs Y did not meet the criteria for CHC funding at that time.
However, by the end of July Mrs Y’s behaviours had deteriorated again; she continued to be physically and verbally abusive when receiving personal care. The Doctor, care home manager, CPN and social worker agreed a best interests’ decision was required regarding care and accommodation as care home B really could not meet Mrs Y’s needs. Mr X asserted that Mrs Y’s behaviour had improved 100% but the records showed that she was still challenging, including physical aggression towards staff. She had not had her night-time medication at 50% of the past fortnight and was refusing food and drink at that time, so could not even be covertly medicated.
The best interests meeting in August concluded Mrs Y needed to be detained in hospital under section 2 of the Mental Health Act for a period of assessment in hospital. She had since moved to a nursing home.
What was found
Care Home A
Although the records showed that care home A made significant efforts to assist Mrs Y with personal care, she did not receive personal care as she should have. The LGO considered that she could not be showered against her will, (with which we would disagree, respectfully if her reluctance was regarded as lacking in capacity) but found care home A to be at some low level of fault.
At the best interests meeting in early January 2018 the Council noted Mrs Y was spending long periods of time in bed, refused showers and was not co-operating with personal care. It was agreed by all parties there, that it would be in Mrs Y’s best interests to remain at the home, with Mr X and his family assisting with her showering. The LGO considered that the Council failed properly to monitor or assess if this shared responsibility (with a view to staff taking over hygiene roles) was actually working. This was fault (in terms of the Care Act obligation to review after changes to the care plan, that is, on the part of the council.) Mr X and the family were put to the additional strain of having to shower Mrs Y (but had agreed). This also impacted on Mrs Y’s dignity and caused her avoidable distress.
Mrs Y’s behaviour did not improve and the best interests assessor raised concerns about the suitability of the placement. Care home A did provide some care and support to Mrs Y. However, it could not fully meet her needs. The Council failed to move Mrs Y until mid-February 2018. This delay was fault.
Care Home B
Care home B was a similar type of care home to care home A and so it was unlikely that it would be any the better able to meet her needs. The LGO considered that given Mrs Y’s history of non-compliance with care and physical and verbal aggression, there was no evidence the Council properly considered whether care home B was actually suitable for Mrs Y. The Council failed to ensure Mrs Y was moved to a suitable care home to meet her needs and this was fault.
Care home B completed a pre-assessment of Mrs Y which was inadequate with regard to communication of the difficulties care home A had in relation to Mrs Y’s personal care or of Mrs Y’s verbal and physical aggression. This was fault. The poor pre-assessment suggested care home B was not fully aware of Mrs Y’s needs when it agreed to her admission.
As with care home A, care home B made significant efforts to address Mrs Y’s behaviour. It involved the Council’s Quality Team and contacted the GP and mental health team. However, it could not fully meet Mrs Y’s needs; her family were still bathing her, the mental health team doctor considered she was incorrectly placed, etc.
It was assessed that care home B was not a suitable place for Mrs Y, but Mr X was unhappy with the alternative options. Although it was appropriate to consider Mr X’s views, the Council was responsible for deciding what was in the best interests of Mrs Y as it was the commissioner of the care and it should have taken action to move Mrs Y sooner. Mrs Y remained in an unsuitable care home for longer than she should have which was fault. As a result Mrs Y did not receive all the care she needed.
The Council’s complaint investigation focused purely on whether Mrs Y was neglected but Mr X had also complained he was not happy with the care provided and that Mrs Y’s needs were not met “and it is evident that they were not”. The complaint response was inadequate and this is fault.
The LGO recommend that the Council reduce the bill for charges for the care at care home A by 25% to acknowledge Mrs Y’s needs were not fully met by the care home; reduce the bill for care at care home B by 50% to acknowledge the impact on Mrs Y’s dignity and the distress caused to her by its failure to fully meet her needs; and apologise and pay Mr X £250 to acknowledge the distress, time and trouble and frustration he was caused by the Council’s failings.
There was also a ‘lessons learned’ set of commitments recommended, the most important of which are these:
- the need to assess the suitability of alternative care homes when it is clear a care home is not meeting a resident’s needs;
- when it should act in a resident’s best interest to move a person;
- ensure care homes complete appropriate pre-assessments before care home admission;
Points for the public, service users, families, council commissioners and best interests assessors and care homes
This report is a classic of its kind, because underlying its findings is a legal framework that has been the law for over 10 years –
- the relationship between safeguarding and care management and legislative functions for meeting need
- and the relationship between restraint, force and best interests,
- and the relationship between the Best Interests assessor working under the DoL safeguards for scrutinising deprivation of liberty, and the stance of the commissioner of the care – more often than not, the employer of the BIA being the very council paying for the care.
We do get that care home ‘A’ tried really hard; it thought that the woman was positively refusing care, but we do not see any focus by the LGO on whether there was a capacity assessment which would have justified imposition of care in her best interests, even though the care home would, we are sure, needed to have charged more for it, and maybe would have felt it could not hope to persuade the council.
Disinclination to USE the MCA, to legitimise forceful imposition of care, although it goes against the grain, is a step on the way to negligent failure to take steps to avoid foreseeable harm, we would suggest, at least arguably).
The BIA on a DoLS process is able to say that the regime not only constitutes deprivation of liberty but that it is not justified by reference to the necessary and proportionate test, if the care is unsuitable for the longer term. It is the law that when the BIA says that DoL is ‘justified but for a short term period only’, the most that can be done is minimal deprivation of liberty whilst essential steps are taken, regardless of the price, to secure suitable accommodation. Ironically, in a suitable setting, one might be more free and less restricted, because the provider does not NEED DoLS authorisation if one is sectioned under the Mental Health Act to keep the person safe, and one can treat without consent, for a mental disorder, under s3.
Here, whatever the view of the BIA, the relative is presented as both holding out for some improvement, which did seem to happen for a while, and yet also standing in the way of a new placement being made. If a doctor rationally and coherently advises that nursing care is needed, it is inappropriate for any council not to secure a placement in a suitable care home registered for nursing.
It’s not clear where the initiative for the move to care home B actually came from. The report says that Mr X informed the Council officer that a staff member from care home B would be assessing Mrs Y with a view to moving her there, as if it came from the family. It is not clear whether the fault there lay with the council or care home B, but pre-assessment is done for BOTH the council and the incoming provider for their own separate purposes – to nail the detail of disclosure of the actual needs of the client and enable sign off of a budget, based on needs (but within the context of existing commissioned contracts or frameworks) so that an admission decision can be made on a proper footing by both sides.
The report said this, without indicating whose documentation this was – the council’s, under Care Act commissioning arrangements or the new care home’s paperwork or commentary/evaluation:-
“the pre-admission assessment noted Mrs Y had dementia. In relation to mood, the yes/no boxes were left blank in relation to ‘does the customer experience episodes of low mood’, ‘does the customer experience fluctuating moods’, ‘is there anything in particular that causes the customer to feel unhappy’ and ‘does the customer become physically aggressive towards others’. The form noted Mrs Y had a CPN. In relation to the question ‘does the customer show signs of anxiety’, the handwritten comment stated ‘only around personal care’. Under mobility assessment ‘does the customer require assistance to bath/shower’ the handwritten comment stated ‘guidance and support, prompting’. Under the personal care assessment, it stated she needed prompting with personal care, guidance with dressing, she preferred a shower/body wash and needed guidance with mouth care. The nutrition assessment noted Mrs Y did not have any special requirements but required prompting. The sleeping assessment noted Mrs Y slept in her clothes on top of the bed.”
If a person is agreed by professionals to be unsuitably placed in care home A, then a competent care manager simply must decide what it is about that environment or the regime that is unsuitable, and what is then required to be purchased in order that that problem is solved. And this information must be properly passed on to any new provider otherwise there is no consensus as to what the contract or the contract price is FOR…
Ensuring that the next candidate for the responsibility of meeting needs KNOWS the nature and scope of the issues being presented by the person, capacitatedly or otherwise, is crucial for fair commissioning for a rate that is feasibly enough to ensure the person is not just being shoved from pillar to post, amongst providers, none of whom are providing nursing care, and some of whom may well be underpaid and admitting unmanageable clients ‘in the dark’.
Even if nursing care was what then became necessary, it could not be just ‘any old care home that happens to be CQC rated as fit to be open for business’, even if it IS registered for nursing care.
That is because the essence of any care plan is to meet the needs adequately and appropriately, and in the context of accommodation, that means suitably. Suitable accommodation is part and parcel of promoting wellbeing: regard must be had to the suitability of where one IS and the suitability of where one might well next be placed, for the care planning process to have been discharged lawfully.
If the relative was going round and preferring some to others, and regarding all as unsuitable, we suspect that the back story there would have been affected by the council’s usual rate, the woman’s personal budget not having gone up on account of her challenging behaviour, and the apparent need for a top up to obtain even basically adequate care, although that is not stated in the report. The rate for residential or nursing care that the council was paying could well have been arbitrarily low, thereby encouraging the son to think that the family would need to pay more by way of a top up than in fact was the case, to ensure his mother was properly accommodated and cared for in a nice place.
We think it’s interesting that Sandwell’s safeguarding co-ordinator was doing great triage (assessment and commissioning failures are not necessarily abuse or neglect) but still not achieving resolution of the problem. In that case one has to ask why it is not institutional abuse, if an organisation is ignoring its Care Act duties for reasons to do with staff shortages. A duty is a duty, and it can’t be budget determined, and has to be needs led, and the council is obliged to furnish the Director with sufficient staff for the discharge of all its functions. It is isn’t the situation on the ground, that adds up to a systemic failure which IS then a safeguarding issue, and one for the Monitoring Officer, we think.
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The full Local Government Ombudsman report Sandwell Metropolitan Borough Council’s actions can be found here