Section 2: The basis for our determination of the complaint
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In general terms, when determining complaints that injustice or hardship has been sustained in consequence of service failure and/or maladministration, we usually begin by comparing what actually happened with what should have happened.
So, in addition to establishing the facts that are relevant to the complaint, we also need to establish a clear understanding of the standards, both of general application and which are specific to the circumstances of the case, which applied at the time the events complained about occurred, and which governed the exercise of the administrative and clinical functions of those bodies and individuals whose actions are the subject of the complaint. We call this establishing the overall standard.
The overall standard has two components: the general standard, which is derived from general principles of good administration and, where applicable, of public law; and the specific standards, which are derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.
Having established the overall standard we then assess the facts in accordance with the standard. Specifically, we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard.
If so, we then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute service failure or maladministration.
The overall standard we have applied to this investigation is set out below.
The general standards
In February 2009 the Health Service Ombudsman republished her Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy.1 These are broad statements of what she considers public bodies should do to deliver good administration and customer service, and how to respond when things go wrong. The same six key Principles apply to each of the three documents. These six Principles are:
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things right, and
- Seeking continuous improvement.
Two of the Principles of Good Administration particularly relevant to this complaint are:
‘Getting it right’ – public bodies should provide effective services with appropriately trained and competent staff. Where public bodies are subject to statutory duties, published service standards or both, they should plan and prioritise their resources to meet them.
‘Putting things right’ – when mistakes happen, public bodies should acknowledge them, apologise, explain what went wrong and put things right quickly and effectively.
In cases where the Health Service Ombudsman identifies maladministration and/or service failure, it does not necessarily follow that she will also find that injustice has been caused as a result.
The specific standardsLegislation
The National Health Service and Community Care Act 1990 clarified that local authorities had a duty to assess the individual community care needs of any person who, in their view, required services, and then to decide what services should be provided. This Act also required health authorities to assist in the assessment of need in cases where the person appeared to require the services of the NHS.
The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. This Act is underpinned by a set of five key principles:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
- A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
- Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
- Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
The Mental Capacity Act 2005 sets out a test for assessing whether a person lacks capacity to take a particular decision at a particular time. It also established a new Court of Protection and the Office of the Public Guardian. The Court of Protection may decide whether a person has capacity and appoint a deputy to make decisions on behalf of a person who lacks capacity to do so for themselves. The deputies are supervised by the Office of the Public Guardian.
National guidance
In 1999 the Department of Health published Effective care co-ordination in mental health services: modernising the care programme approach, which contains specific guidance on the role of the care co-ordinator. This includes:
‘Effective care co-ordination should facilitate access for individual service users to the full range of community supports they need in order to promote their recovery and integration. It is particularly important to provide assistance with housing, education, employment and leisure and to establish appropriate links with criminal justice agencies and the Benefits Agency.’
The Department of Health also published the Mental Health Policy Implementation Guide Community Mental Health Teams in 2002. This document sets out expectations for CMHTs relating to: working with primary care; assessment; team approach; regular review; and interventions. It includes the requirement for:
- regular review of progress and outcomes
- care plans to be formally reviewed and updated
- that there should be a single written record for each service user
- case workers should not take on a caseload of more than 35 to 40 cases
- physical health problems to be identified and discussed with GPs
- families and carers to be involved as much as possible.
Local guidance
The Trust and the Council published an interagency policy and procedure relating to the protection of vulnerable adults in St Helens: Safeguarding Vulnerable Adults Protocol 2006. This included a section headed ‘Intervention threshold’, which stated:
‘1.3.1 The term “intervention threshold” is used to try and determine at what level of “threshold” the statutory agencies should intervene in the affairs of an adult deemed to be vulnerable and at risk through their own action or the action of others. The decision to intervene should only be taken when the behaviour or risk is felt to be to an unacceptable level. This decision may, therefore, involve advice from other professionals such as doctors, psychologists, line managers and, if necessary, solicitors.
‘1.3.2 The [Department of Health’s] guidance “No Secrets” suggests that in determining whether to intervene: “harm should be taken to include not only ill-treatment … but also the impairment of, or an avoidable deterioration in, physical or mental health …”’
Categories of mistreatment are identified in paragraph 1.3.5 of the guidance. They include ‘neglect (of self or by others)’.
Professional standards
The General Medical Council (the GMC – the body responsible for the professional regulation of doctors) publishes Good Medical Practice, which contains general guidance on how doctors should approach their work. This represents standards which the GMC expects doctors to meet. It sets out the duties and responsibilities of doctors and describes the principles of good medical practice and the standards of competence, care and conduct expected of doctors in all areas of their work. It states that, amongst other things, good clinical care must include adequately assessing the patient’s condition taking account of the history; providing or arranging investigations or treatment where necessary; and referring a patient to another practitioner, when this is in the patient’s best interests.
The Nursing and Midwifery Council (the NMC – the body responsible for the professional regulation of nurses) publishes Guidelines for records and record keeping, which contains general and specific guidance on the standard of record keeping expected of nurses. The version of the guidelines that was in place at the time of these events was superseded in 2009. On page 8, the guidance stated that records should: ‘… be written as soon as possible after an event has occurred, providing current information on the care and condition of the patient or client’.
On page 10, the guidance said:
‘The approach to record keeping that courts of law adopt tends to be that “If it is not recorded, it has not been done”. You must use your professional judgement to decide what is relevant and what should be recorded. This applies particularly to situations where the condition of the patient or client is apparently unchanging and no record has been made of the care delivered.’
Human rights considerations
Public bodies (and some other bodies with public functions) must comply with the Human Rights Act 1998. Underpinning human rights law are the key principles of fairness, respect, equality, dignity and autonomy.
It is not the role of Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached – those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations.
If it appears to us that someone’s human rights are engaged in relation to the events complained about, we will expect the public body, in accordance with the Principles of Good Administration, to have had regard to those rights in the way it has carried out its functions, and to have taken account of those rights as a relevant consideration in its decision making.
1 The Ombudsman’s Principles is available at www.ombudsman.org.uk.
