Section 3: The investigation

Our staff met Ms A on 29 September 2009 to discuss the nature of her concerns, and the way in which we would investigate the complaint, and confirmed our understanding of the complaint in a letter to her dated 5 October, which also confirmed the issues we would investigate.

During this investigation we have examined relevant evidence. This includes papers provided by Ms A’s solicitors, video footage taken by Ms A of Mr B at home in March 2008, Mr B’s medical records and the papers relating to the attempted resolution of the complaint by the Trust and the Council. Since we started our investigation, the Trust has undertaken further work to review the complaint and we have taken account of its review. We have interviewed the Trust’s and the Council’s staff involved in Mr B’s care, and their managers.

We obtained specialist advice from three of the Health Service Ombudsman’s clinical advisers, a GP (the GP Adviser), a consultant psychiatrist (the Psychiatric Adviser) and a registered mental health nurse (the Nursing Adviser). The Health Service Ombudsman’s clinical advisers are specialists in their field, and in their roles as advisers to the Health Service Ombudsman they are independent of any NHS body.

In this report we have not referred to all the information examined in the course of the investigation, but we are satisfied that nothing significant to the complaint or our findings has been omitted.

Key events 

This account of events has been taken largely from the contemporaneous records, with some additional information provided by Ms A.

Background

Mr B’s past history included admissions to hospital, detention under the Mental Health Act 1959 and a suicide attempt in 1998. In 2006 he had been receiving community care support while living independently for more than ten years.

Mr B’s care plan included regular visits from cleaners (provided by the Council’s Homecare service) and from a support worker whose role was to assist him with shopping, budgeting, cleaning and cooking. A community psychiatric nurse (CPN), who was Mr B’s care co-ordinator, was to visit him fortnightly to administer his medication by injection and monitor his mental health.

A risk assessment was drawn up in 2004 and countersigned ‘no change’ in 2005, 2006 and 2007. This identified risks to Mr B through attempts at self‑harm, deterioration in mental health, neglect of medical needs, difficult personal relationships, social isolation, level of understanding and insight and neglect of dietary needs. The assessment identified triggers for concern which included:

‘domestic circumstances deteriorating in flat … sleep disturbance … increasing evidence of self neglect … not engaging for visits … not allowing personal care in … dirty kitchen and utensils … unsafe storage of food.’

The management plan included twice weekly visits by the support worker; encouraging kitchen hygiene and a more varied diet; and informing the CPN of all concerns or failed visits.

Over the years, there were often difficulties in gaining access to Mr B to monitor his welfare or to provide care services. On more than one occasion, his flat had become excessively dirty and additional heavy cleaning work was undertaken.

In 2004 Mr B was seen to have problems with his toenails. His support worker went with him to the GP and in March 2005 to hospital for an operation. The operation was cancelled. The support worker went with him on a second occasion, but this time it appears that Mr B had not followed the instructions not to drink beforehand and so the operation could not proceed. In October 2005 a new appointment was made but Mr B refused to attend.

The CPN encountered similar difficulties when Mr B had problems with his teeth in 2005. The CPN had gone with Mr B to the dentist on one occasion. However, Mr B believed that problems with his teeth arose from the police X‑raying them and refused to go again.

There is evidence in the record that efforts were made in 2005 to move Mr B into supported accommodation. The possibility of a move was discussed on a number of occasions, but after a long discussion with the CPN and the support worker on 1 August, Mr B refused the move.

Key events from 2006 to 2008

During 2006 the support worker regularly visited Mr B. The usual pattern of a visit was that they would go together to the Post Office to collect his benefits. Sometimes they did some shopping but sometimes they just chatted. There were many references in the records of the support worker’s visits to Mr B appearing smart, clean and shaven. The number of failed visits by both the support worker and the CPN appears to have increased during the year.

In January 2007 the support worker specifically noted that the flat appeared clean and tidy, and that Mr B looked well. In February the support worker noted that Mr B:

‘had no money due to paying a “big bill”. Advised [Mr B] to count the money in his money jar. The last time we counted it, it was over £50 in loose change. [Mr B] said he would change it into notes.’

On 23 March 2007 a second CPN saw Mr B and recorded: ‘[Mr B] was pale and dishevelled his living conditions are very grubby the carpet and suite were badly soiled’. However, the support worker noted that Mr B was ‘very smart’ on 2 April.

In May 2007 a cleaner reported: ‘rang senior [Mr B] had a lot of flies in kitchen all over walls & cupboards. Senior told us to get out, she would get in touch with Environmental Health’. On the following day it appears that the senior visited Mr B, found the kitchen ceiling full of flies, opened windows, emptied rubbish, cleaned unit tops – the rest of the record is unreadable.

In August 2007 the CPN helped Mr B to complete the form applying for a loan for a new bed, as his old one had collapsed and he had been sleeping on the mattress on the floor or the sofa. (This application was refused in October 2007.)

In September 2007 a cleaner reported: ‘[Mr B] needs some attention to his toe nails very bad will inform senior’.

In November 2007 a cleaner recorded: ‘rang senior [Mr B] had a lot of flies in kitchen it was a mess did what we could’. On 26 November, the support worker noted that Mr B’s phone was disconnected:

‘[Mr B] said that he doesn’t want a phone. He cannot afford the phone bill. Advised [Mr B] it was an essential item. [Mr B] said if there were any problems, he would tell me.’

Mr B visited his aunt and Ms A just before Christmas 2007. Ms A said that they noticed that he appeared to be declining in physical and mental health. He reassured them that he was being looked after.

In December 2007 the CPN saw Mr B twice. On 3 December he discussed the possibility of applying again for a loan so that Mr B could buy himself a new bed. He also visited on 24 December, when he checked that Mr B had sufficient and suitable food for the holiday period and that he knew whom to contact if he needed any help. Also in December, the support worker saw Mr B seven times. He usually went with Mr B to the Post Office to collect his benefits, to sort out any bills and do some shopping. However, on these occasions, Mr B refused help. The support worker recorded no concerns: Mr B ‘seemed fine’. However, after a number of failed visits, the Homecare service raised concerns that their team was not meeting Mr B’s needs. The Homecare manager arranged to make a joint visit with the CPN on 7 January 2008 in order to discuss how they could better meet his needs.

In January 2008 the support worker made five visits to Mr B but only saw him once, on 14 January, when they discussed the fact that Mr B had now been given a loan to buy a new bed. In the same month, the CPN made five visits at which he did not manage to see Mr B, including two attempted joint visits with the Homecare manager. However, he did see Mr B on 9, 24, 25, 28 and 29 January. These visits included reminding Mr B about an appointment with his GP on 28 January, and to go with him to the GP. However, the appointment was cancelled. The CPN and Mr B went out together on 29 January to buy a new bed and bed linen.

In February 2008 Mr B’s regular CPN was absent from work and other CPNs tried unsuccessfully to visit Mr B on eight occasions between 7 and 11 February. The crisis team were approached to try to make contact with Mr B and ensure that he received his regular injection of medication. The support worker also failed to make contact on 11 and 14 February. It appears that the Homecare cleaners did see Mr B on 7 February, but they were unable to make contact when they attended on 14 February.

On or around 15 February 2008 Mr B arrived at his aunt’s house, where Ms A was also staying. By Ms A’s account, he was extremely dirty and unkempt and had lost a lot of weight. He said that he was unwell and had backache and asked if he could stay for a while. They agreed and contacted the care team so that Mr B could have his regular injection at his aunt’s house.

Meanwhile, Ms A went to Mr B’s flat to collect some clothes for him. She says that the state of the flat was horrifying: there were cockroaches and flies; there was food over a year out of date; uncovered uneaten takeaway food; there were stains on every surface and faeces and urine stains on the carpets and furniture. Ms A said that she spent several days cleaning the flat and threw out more than 30 bags of rubbish. She said that there was a great deal of money in loose change lying about (Mr B did not like using coins) and that there were many toys, including some expensive items.

On 18 February 2008 the support worker visited and met Ms A at Mr B’s flat. She told him that Mr B was staying with her and the support worker reported this to his manager and to the CMHT manager.

Mr B returned to his flat on 19 February 2008 and Ms A agreed that she would visit him daily. When she visited on 22 February, Mr B told her that he had spent the night in hospital following an overdose of medication. (She learnt later that Mr B’s telephone was disconnected so that he had not been able to call for an ambulance; he had walked to the police station for help.) She also found that his cooker and washing machine were not working.

On 25 February 2008 Ms A met Mr B’s support worker again. She said that the support worker told her that he had no right to interfere in the way Mr B was living. She tried to contact the CMHT manager by telephone but he did not return her calls.

On 5 March 2008 Mr B had an appointment with his psychiatrist, which Ms A and a CPN also attended. The psychiatrist diagnosed depression and prescribed fluoxetine. He also wrote to Mr B’s GP drawing his attention to Mr B’s poor physical health.

On 11 March 2008 Ms A called the GP and asked her to make a home visit; Mr B had severe back pain. The GP prescribed diclofenac sodium (a strong pain killer). It appears that Mr B never received this prescription; the GP was unwilling to issue it to Mr B because of the risk of overdosing and Ms A did not know that the prescription had been proposed until some time later.

Ms A spoke to the CMHT manager on 23 March 2008 and expressed her concerns. She spoke to him again on 26 March. Ms A told us that at that point, Mr B was so weak he was barely able to walk. She had been trying to get him to eat but he struggled to manage more than a few mouthfuls. He had a severe fungal infection in his toenails and pressure marks on his buttocks, back and shoulders.

On 2 April 2008 Ms A called the GP to see Mr B at home. The GP recorded: ‘weight loss +++ faecal incontinence, cachexic,² naked on settee vv pale marked deterioration since last visit’.

The GP arranged for Mr B to be admitted to hospital as an emergency. On admission, he was found to be severely malnourished, dehydrated, lethargic and confused, occasionally incontinent of both faeces and urine. He was able to walk without assistance, but needed help to get up. A malignancy was suspected and a diagnosis of myeloma was made a few days later. After spending some time in hospital, Mr B moved to a nursing home. He died in June 2010.

The progress of the complaint

Ms A voiced her concerns to the CMHT manager as described above. Ms A met the Trust’s and the Council’s staff on 29 April 2008 and asked for a full investigation. She heard nothing further despite follow up letters and so a formal written complaint was made on 17 July.

The Trust and the Council carried out an investigation, interviewing the CPN, and the support workers and their managers. The Trust responded on behalf of both bodies on 24 September 2008. They denied any suggestion that there had been fault by either the Council’s or the Trust’s staff. They said that Mr B was a long standing, voluntary patient with capacity, entitled to reject assistance, which he did.

Ms A’s solicitors sent a pre-action protocol letter on 30 September 2008, specifically asking for the complaints process to continue. However, both the Trust and the Council withdrew from the complaints process; the matter was referred to the NHS Litigation Authority, which rejected all claims on 31 December.

Ms A’s solicitors made a complaint jointly to the Local Government Ombudsman and the Health Service Ombudsman dated 19 February 2009, explicitly stating that legal action was not being taken. They asked that due to Mr B’s limited life expectancy, and the failure of the bodies so far to conduct full investigations, the complaint be investigated by the Ombudsmen rather than be referred back to the bodies.

Ms A’s recollections and views

Our staff met Ms A on 29 September 2009. She said that she had recently come to live with her aunt because of her aunt’s need for care. Her aunt had previously been involved in reviews and discussions about Mr B’s care with a social worker, but this contact had stopped in the last two years – she did not know why. She had only become involved with Mr B since December 2007 when he had visited her aunt.

Ms A said that she had been very shocked by Mr B’s state when he visited his aunt in February 2008 and asked to stay. She was horrified by the state of his flat – the heating was on full and there was a powerful smell. Everywhere was extremely untidy and dirty.

Ms A clarified the main issues she was concerned about. She said that she did not believe that cleaners had attended when they should have done and did not clean when they did attend; they claimed to have attended when they had not. Ms A also expressed concerns that Mr B’s carers had not ensured that he had access to a telephone, or to a cooker or washing machine that worked properly. She thought that Mr B had not been given appropriate help to claim benefits or to manage his money sensibly; he was allowed to buy toys rather than food.

Overall, Ms A said that there had been care plans which had not been implemented. There were also risk assessments identifying factors that should have given rise to concern and further action. These factors had been present but not identified or acted upon. Consequently, Mr B’s physical and mental health had deteriorated to the point when he was admitted to hospital in a severely ill condition.

The Trust’s position

After our investigation started, the Trust carried out a further review of Ms A’s complaint. In a letter to the Health Service Ombudsman dated 9 December 2009, the Chief Executive of the Trust wrote:

‘In the first instance, I would like to acknowledge that the initial complaint investigation into Ms A’s concerns (raised through [her] solicitors) was not of an acceptable standard and did not identify any concerns relating to Mr B’s deteriorating health.

‘A subsequent review and investigation of the care provided to Mr B has identified that the Trust did not provide an appropriate or acceptable level of care to him, and I offer my sincere apologies to both Mr B and Ms A for any distress this has caused.’

In relation to Ms A’s complaint that psychiatrists had not treated Mr B appropriately in consultations on 5 and 25 March 2008, the Trust said that it had sought an independent view and had reached the conclusion that the psychiatrists had acted appropriately.

In relation to Ms A’s concerns that care plans for Mr B had not been implemented and no one responded appropriately to the developing signs of risk to his physical and mental health, the Trust acknowledged that it failed to provide Mr B with an appropriate level of care and support.

The Council’s position

In response to our enquiries, the Council said that in 2006, Mr B was receiving disability living allowance, income support and housing benefit. These were the benefits to which he was entitled, and the level of the benefits was automatically reviewed and confirmed on an annual basis. The CPN and support worker would have helped Mr B deal with that correspondence and access his benefits. Because there was no change to his financial circumstances, there would have been no need to refer him for additional benefits or welfare rights advice.

The Council’s position in relation to the complaint that Mr B’s care plan was not implemented and he did not receive the care and support to which he was entitled, is further explained by the evidence given at interviews with the Council’s staff, which is attached to this report as an annex.

Specialist advice

Background clinical information

The GP Adviser provided some background information about myeloma and how this might have presented in the months before Mr B’s admission to hospital. The GP Adviser said that myeloma is a form of blood cancer and that it is not common for GPs to diagnose new cases as there are only about 3,750 new cases in the UK annually.

The GP Adviser said that myeloma may present with:

• infections (due to altered immunity);
• anaemia (with symptoms such as tiredness, shortness of breath or palpitations);
• bone pain (where the tumour is eroding bone);
• pathological fractures (where the eroded bone is weakened and breaks);
• raised calcium (which may cause tiredness, weakness, loss of appetite, abdominal pain, kidney stones, nausea/vomiting, constipation or confusion);
• renal failure; and
• hyperviscosity of blood (slowing up of blood flow, so various blood clots may form which can cause confusion).

The GP Adviser said that consequently, myeloma may present in a dramatic way with perhaps a pathological fracture, or may be slow and insidious. If a patient had, for example, anaemia and raised calcium levels developing they might have experienced a rather non-specific decline with perhaps tiredness, loss of appetite and confusion. It is likely that there would have been a physical decline that had been going on for some months before diagnosis.

The advice of the Psychiatric Adviser

The Psychiatric Adviser examined the records relating to consultations Mr B had with psychiatrists on 5 and 25 March 2008.

The Psychiatric Adviser noted that a psychiatrist from the rapid access clinic saw Mr B on 5 March 2008. In his follow up letter to Mr B’s GP, the psychiatrist noted Mr B’s mental health deterioration: he showed increasing self neglect and paranoia. He commented that Mr B’s family were concerned about self neglect and safety at home. He noted that Mr B had not been eating well and had lost a significant amount of weight. Mr B had not been letting his carers come into the house and his house was in a bad state. The Psychiatric Adviser noted that the current CPN had organised an occupational therapy assessment of his needs and that a care programme approach review had been arranged. The psychiatrist increased Mr B’s prescription of Depixol (a drug used in the long‑term management of schizophrenia) and also prescribed an antidepressant, fluoxetine.

The Psychiatric Adviser noted that Mr B, together with Ms A, saw a second psychiatrist on 25 March 2008. On 26 March the second psychiatrist wrote to Mr B’s GP to say Mr B had shown some improvement in his mood and was no longer depressed, and had no psychotic symptoms. He identified the main problem as Mr B’s physical disability following a period of severe self neglect including poor food intake. He asked the GP to screen his physical health. The Psychiatric Adviser said that this suggests that the second psychiatrist was asking the GP to take responsibility for looking after Mr B’s physical health needs. It appears that the second psychiatrist did not think that there was an immediately life threatening situation but he did order blood tests.

The Psychiatric Adviser said that Mr B’s medical records show that the psychiatrists who saw Mr B recorded Mr B’s history and took note of Ms A’s concerns. Treatment and investigations were arranged. A referral was made to Mr B’s GP, who was the person best placed to conduct a review of Mr B’s general physical health. The Psychiatric Adviser said that on the basis of the evidence available to her, it appeared that the standards set out in GMC guidance (paragraph 29) were met.

The advice of the Nursing Adviser

The Nursing Adviser said that records were kept separately by the support worker and the CPN. There was little evidence of communication between the two, and little reference to joint reviews, joint visits or joint care plans. This was a fragmented system of record keeping, which made it harder to plan and deliver appropriate care. When Mr B’s regular CPN was absent from work and a second CPN took over responsibility for him, she told Ms A on 13 March 2008 that she did not know that the community support team or Homecare staff were involved. The Nursing Adviser said that this fragmentation was not in line with the standards set out in the Mental Health Policy Implementation Guide (paragraph 27).

The Nursing Adviser noted that the individual records kept about Mr B were not always made promptly after visits; there were surprising gaps in the records, which became increasingly brief and uninformative through 2007 to early 2008. There was no depth to any assessment of Mr B’s mental state, capacity or risk. While this level of detail is not to be expected from untrained support workers, it is to be expected of qualified professional staff such as the CPN. Records should have referred to Mr B’s risk assessment and management plan. Had this been done, any need for change to the care plan would have showed. As it was not, it would have been difficult to form an overview of Mr B’s ongoing status. The Nursing Adviser said that record keeping by the CPN did not meet the requirements of the NMC guidance (paragraphs 30 and 31).

The Nursing Adviser said that Mr B’s care programme approach reviews did not take place as required by the Mental Health Policy Implementation Guide (paragraph 27). It appears that a care programme approach review meeting was held in November 2006. In the records, there was also a letter from a staff grade psychiatrist that referred to a care programme approach review which took place on 18 September 2007, but otherwise there is a gap in the care programme approach documentation until April 2008, by which time Mr B was in hospital. There is no evidence that all relevant people involved in Mr B’s care were invited to reviews and his nearest relative was not involved.

The Nursing Adviser noted that a very thorough risk assessment had been drawn up by social services support staff in 2004, which was comprehensive in its detail and showed a good knowledge of Mr B. This was not updated but countersigned with the comment ‘no change’ in 2005, 2006 and 2007. The Nursing Adviser said that a simple countersignature could not demonstrate an adequate review of Mr B’s care plan and risk assessment. Moreover, while there is evidence that many of the triggers identified by this risk assessment were acted on, there were many occasions when they were not. This included, for example, the many occasions when Mr B avoided staff.

The Nursing Adviser said that there was evidence in the notes that Homecare staff and the support worker reported what they saw to their managers and that concerns were reported to the care co-ordinator, as required by the risk assessment and management plan. However, even where risks were identified, there is little evidence of appropriate action being taken by professional staff involved in Mr B’s care. There seemed to have been an assumption that Mr B had at all times the capacity to make decisions in relation to his day-to-day life. Although concerns about Mr B’s decision making were raised within the notes, there is no evidence that his capacity was ever formally tested, discussed or reviewed on a regular basis. For example, on one occasion when Homecare staff reported that Mr B had not been allowing them access, a manager went to the flat and gained access. It seems that once it was established that Mr B was in the flat and alive and the flat was clean, little more was done. The Nursing Adviser said that Mr B’s care workers (the CPN and support worker) seemed to be working in a culture which emphasised the individual’s right to live in the way they chose. The Nursing Adviser said that from the evidence available, it did not appear that the care workers understood that this view must be balanced by regular consideration of an individual’s capacity to make decisions.

In summary, the Nursing Adviser said that in their notes and conversations with each other, some staff had clearly raised concerns about Mr B’s capacity to make decisions in relation to his self care and ability to feed, shop and protect himself from people who might take advantage of him. The problem was that no one took these issues up and responded to them within the framework of the Mental Capacity Act 2005 or by considering the ‘intervention threshold’ within the Trust’s own vulnerable adults policy. Consequently, there was confusion as to the balance to be struck when considering whether Mr B had the capacity to make decisions.

The Nursing Adviser said that although staff clearly felt that they were giving Mr B a lot of practical support to live independently, he was often avoiding them: denying them access and essentially ignoring their suggestions. Mr B’s increasingly odd behaviour and self neglect were ignored on the basis that he had the right to live in the manner he chose. The reality was that whereas Mr B might have been able to choose what he wanted to eat from a menu when in hospital, his mental state meant that he could not prioritise his physical needs against, for example, his desire to buy children’s toys. It appeared that Mr B could be indifferent to his physical condition and deny any problems until the situation was quite serious.

The Nursing Adviser said that given the difficulty of engaging with Mr B, which was clearly increasing through 2007 to 2008, it is surprising that staff did not consider referring him to an assertive outreach team – a service designed for adults with a severe and persistent mental disorder who have difficulty maintaining lasting and consenting contact with services, particularly where there is significant risk of persistent self-harm or neglect. The Nursing Adviser also said that had public guardianship been considered, this would have allowed care workers to be more assertive about ensuring that cleaners had access and that Mr B had access to basic appliances such as a telephone, cooker and washing machine. Assistance with his finances could also have been better managed.

Finally, the Nursing Adviser raised a concern that Mr B’s care was co‑ordinated by a CPN who appeared to have too large a caseload (paragraph 27). When Mr B’s cousin began to raise concerns about Mr B’s care, and he began to show signs of significant physical illness, it seems that the CPN’s managers were also slow to identify and react to the developing risk.

The Health Service Ombudsman’s findings in relation to the complaint solely about the 5 Boroughs Partnership NHS Trust

Ms A’s specific complaint solely about the Trust is that in March 2008 a psychiatrist failed to respond appropriately to Mr B’s poor physical state; instead he prescribed inappropriate drugs for depression.

I have set out the standard expected of doctors when dealing with patients (paragraph 29); doctors must adequately assess the patient’s condition taking account of the history; provide or arrange investigations or treatment where necessary; and refer a patient to another practitioner, when this is in the patient’s best interests.

Mr B saw two different psychiatrists on 5 and 25 March 2008. The Psychiatric Adviser has said that on both occasions, the psychiatrist commented on Mr B’s mental and physical state and wrote to his GP indicating that he was self neglecting and losing weight. The first psychiatrist thought that he was depressed and his level of paranoia had increased; he prescribed increased Depixol and antidepressants. The second psychiatrist, three weeks later, thought that Mr B had improved in mood and had no psychotic symptoms. He ordered blood tests and specifically asked the GP to screen Mr B’s physical health.

I have considered the evidence of Mr B’s physical state in March 2008. By 15 March he was said to be having difficulty getting out of his chair and moving around; an assessment by the occupational therapist had been arranged. Despite daily visits from his cousin, who tried to ensure that he ate well, Mr B was still not improving physically or regaining weight.

The second psychiatrist, who saw Mr B on 25 March, did not think that immediate hospital admission was necessary.

I agree that an admission for psychiatric reasons was not necessary at that time, and that the psychiatrist met the standards required by the GMC in assessing the patient, taking a history, taking account of his relative’s concerns and referring him to the GP for investigation of his physical health. I note that there does not appear to have been any urgency in making that referral at a time when, by all accounts, Mr B’s physical health was very poor and continuing to deteriorate despite the extra support he was receiving from his cousin. However, taking account of the Psychiatric Adviser’s advice, I do not find that there was service failure in this regard.

The Local Government Ombudsman’s findings in relation to the complaint solely about the Council

Ms A complained that no one supported Mr B to claim the benefits to which he was entitled.

I have found that when Mr B was referred to the CMHT, he was already receiving disability living allowance, income support and housing benefit. These were the benefits to which he was entitled. During 2006 to 2008 there was no change in Mr B’s financial or personal circumstances and so there was no need for a review of the situation beyond the annual review and update carried out automatically.

There is evidence in the records that the CPN helped Mr B to apply for an independent living fund grant in order to buy a new bed, but this was refused. The CPN then helped him to apply for a loan, which he obtained in January 2008. The CPN and the support worker both regularly recorded that they accompanied Mr B to the Post Office in order to access his benefits.

I am satisfied that Mr B was receiving the benefits to which he was entitled and that the Council’s staff helped him to access those benefits and apply for grants or loans as needed. I have found no service failure in this aspect of the complaint.

Our joint findings in relation to the complaint about both bodies which, through the community mental health team, had joint responsibility for managing Mr B’s care plans

Ms A’s complaint about both the Trust and the Council was that care plans were not implemented, and no one responded appropriately to the developing signs of risk to Mr B’s physical and mental health. She has raised concerns about the cleaners, the support worker and the CPN. She is also concerned that when she herself tried to alert managers to Mr B’s deteriorating state, still no action was taken.

In relation to this aspect of the complaint, we have considered whether the joint CMHT met the statutory requirements of the care programme approach and service standards published by the Department of Health (paragraphs 26 and 27). We have also considered whether the standards required by the NMC of nursing staff were met, and whether the Trust and the Council demonstrated that they had had regard to, and took account of, the Mental Capacity Act 2005 and human rights considerations.

We first address Ms A’s concerns about whether the Homecare service was providing the service it was required to. Ms A said that cleaners had claimed to have visited Mr B at times when he was not actually at home. We have seen the weekly timesheets prepared by the cleaners and signed by Mr B when they attended. The dates of the visits in February 2008 are given in the key events section of this report. There is no evidence that the cleaners claimed for visits when Mr B was not at home. We recognise that it would have been challenging to keep on top of the cleaning required at Mr B’s flat, especially bearing in mind his reluctance to throw away rubbish and his repeated refusals of help. We also recognise that when Ms A saw the flat for the first time in February 2008, it was in a very squalid state which would have been very shocking to her. However, there is evidence that in 2007 and early 2008, cleaners repeatedly raised concerns about Mr B’s living conditions. There is also evidence that failed visits were reported to the CPN, and that the Homecare manager became so concerned about repeated failed visits that she actively tried to discuss the service they provided with Mr B and his care co-ordinator, in order to better meet his needs. In short, we cannot see that there is robust evidence on which to base criticism of the Homecare cleaners; it appears that they did what they could and they raised concerns with managers, but that little action by appropriate professionals followed.

The evidence we have seen indicates that workers found it difficult to engage Mr B in ensuring that he cared for himself, ate reasonably well and kept his flat reasonably clean. Before 2007 there had been episodes when support workers had tried but failed to get him to visit the dentist despite his teeth being in a bad state, and had tried but failed to achieve treatment for the poor condition of his feet. There had been episodes when his flat had become excessively dirty and required extra cleaning. Efforts to persuade Mr B to move into accommodation with greater support available had been unsuccessful. Mr B was mentally unwell, had different ideas to many people and made what many would consider to be some unwise decisions. On the other hand, he was reported to take care over his appearance and to be out and about in the community, sometimes independently. Although he was identified as being at risk of social isolation and self neglect, we have not seen evidence that, at least until mid-2007, he was unhappy, unkempt, or unduly isolated or that any of the concerns raised about his health or life style at that time were life threatening or that risks to his dignity or welfare were inadequately managed. That said, there were clear signs that Mr B was neglecting his own physical health. The failure to deal with the problems with his feet, for example, led to their becoming, by February 2008, very badly infected.

On examining the available evidence, it is possible to see significant changes occurring during 2007. Whereas Mr B had previously regularly been described as clean and smart in appearance, these comments no longer appeared in the records. There was the occasional comment about Mr B having been in bed or having just got up. At interview, both the support worker and the CPN identified a change in Mr B’s habits, which they thought was possibly related to his trying to avoid contact not only with a neighbour he found troublesome but also with themselves. Both recognised that Mr B was becoming harder to make contact with: the number of failed visits increased. The Homecare service was particularly concerned about this and by December 2007, had specifically asked to review the level of cleaning support Mr B was given, as they felt they were not meeting his needs.

From later 2007 until early 2008, even before Ms A’s intervention, there are indications that various concerns were being raised about Mr B’s mental and physical state. These concerns were reported to the CPN who was the care co‑ordinator. The Health Service Ombudsman’s Nursing Adviser has pointed out that a care programme approach review meeting should have been arranged and that failing to do so was a missed opportunity. Such a meeting, involving everyone who was involved in Mr B’s care, would have enabled an overall picture of developing risk to have emerged and been dealt with appropriately, perhaps by a referral to the assertive outreach team or, at the least, by a full review of the care package Mr B was receiving and a discussion about Mr B’s capacity to make decisions about his own care. The Health Service Ombudsman’s Nursing Adviser also said that a referral to the assertive outreach team should have been considered. He said that the service standards of the Mental Health Policy Implementation Guide were not being met; there was fragmented record keeping, a lack of care planning and review, and a failure to react to developing signs of risk.

The evidence of interviews indicated that the support worker and the CPN were strongly committed to supporting Mr B to live in the way he chose, without imposing decisions on him. For example, the CPN had thought that the pain of his developing foot condition would outweigh Mr B’s fear of going to the doctor and he would be able to persuade Mr B to go at a later date. He described trying to help Mr B to make decisions ‘without bullying him’. The support worker told Ms A that he did not have the right to interfere in the way Mr B chose to live.

We acknowledge that Mr B’s care workers wanted to respect his autonomy and independence. However, the risk assessment and management plan for Mr B identified very clearly the risks of self neglect. There was increasing evidence of self neglect. The management plan identified actions to be taken, which principally involved informing the CPN. Managers have confirmed that all concerns would have been referred to the CPN and that it would have been for the CPN to take action or raise concerns during supervision. We have seen evidence that the CPN had a heavy caseload and was not keeping adequate records. He did not take appropriate action (such as calling a care programme approach review meeting, or considering a referral to the assertive outreach team). Guidance and supervision from his managers was not robust in ensuring that the CPN took appropriate action. We have noted that when Ms A attempted to contact the CMHT manager to alert him to the crisis that had developed in Mr B’s care, there was little response.

In the Trust’s and the Council’s first written response to Ms A’s complaint, they said that Mr B was ‘a long standing, voluntary patient with capacity, entitled to reject assistance, which he did’. It was not recognised that there had been no appropriate discussion or assessment of Mr B’s capacity; consequently, the developing signs of risk to his physical and mental health were not recognised or acted upon appropriately. The CMHT failed to achieve the level of input Mr B required in order to maintain his health and acceptable living conditions, and thus did not meet their service standards.

We are not convinced by the Trust’s and the Council’s view, expressed in their first reply to Ms A, that Mr B interacted with them voluntarily and was capable of making considered decisions to refuse services. We have not seen robust evidence that Mr B’s capacity to make decisions was ever seriously considered or that there was discussion about the balance to be struck between an individual’s autonomy and dignity. Mr B’s rights were clearly central in this matter but we have not seen evidence that the Trust or the Council had regard to or took specific account of human rights law or the provisions of the Mental Capacity Act 2005 in making their decisions.

We consider that this accumulation of failings amounted to service failure.

Injustice

Ms A said that as a consequence of the neglect suffered by Mr B, his physical and mental health deteriorated. He was allowed to live in unacceptably squalid conditions. His physical health was allowed to deteriorate to the point where, when he was admitted to hospital with myeloma, his treatment was compromised by his poor condition and his chances of survival were seriously affected.

From the evidence we have seen, it appears that at the end of January 2008 Mr B had not begun to lose significant amounts of weight and was still sufficiently active to go out with the CPN to buy a bed and to move furniture in his flat to make room for it. Both the CPN and the support worker said that they had never been aware of faeces or urine stains or smells in the flat, although there were stains and it was grubby and untidy. During the first weeks of February there were many failed attempts by various services to contact Mr B, who turned up at Ms A’s house on 15 February saying that he was unwell. By that time, from Ms A’s account, the flat was in a very poor state, with faeces and urine, flies and insects very much in evidence.

It is understandable that Ms A, becoming newly involved in Mr B’s care, should have thought that the conditions in which she found him in February 2008 were those that he had been living in for a long time. However, the evidence does not support that view. We think it likely that Mr B’s flat had always been in a state of relative untidiness and grubbiness that would be unacceptable to some people. On several occasions the cleaners called for extra assistance because it had become very dirty and action was taken by the Homecare service to clean it up. It seems likely, in view of Mr B’s apparent greater neglect of his personal appearance in later months and the concerns raised by the Homecare service, that the state of his flat had worsened during late 2007 and early 2008. We have no doubt that Mr B had a poor diet. In February 2008 Mr B had a period of illness when he was unable to manage his own toileting needs, unable to get out to do any shopping, unable to clean up and refused access to everyone. Within a very short time, this would have had a very significant impact on Mr B and on the state of his flat.

It also appears that Mr B’s deteriorating state was not wholly the consequence of self neglect. The Health Service Ombudsman’s GP Adviser said that it is possible that a person with myeloma would have experienced a slow, insidious decline over the months before diagnosis, which would include increasing tiredness and confusion, loss of appetite and weight loss. There is evidence that Mr B was still physically active at the end of January 2008. After Ms A became involved in mid‑February, Mr B began to receive regular visits from her; she took charge of his personal hygiene, diet and the cleaning of his flat. However, despite the greatly increased support provided by Ms A, Mr B continued to lose weight and to deteriorate physically. With hindsight, it is possible to see that Mr B had a serious illness which had not been diagnosed and which was significantly affecting his physical health.

After careful consideration of all the circumstances, we have reached the view that there was injustice to Mr B, as a consequence of the service failure we have identified.

Over a period of time, insufficient contact was maintained and insufficient intervention was made so that Mr B’s living conditions were allowed to deteriorate and his personal health to be neglected. This meant that when a crisis arose, in the period of illness he experienced at the beginning of February 2008, the CMHT was not in a position to identify the urgency of the problem and provide suitable assistance. Consequently, Mr B’s condition quickly deteriorated to a wholly unacceptable state. However, we cannot definitely conclude that the outcome would have been significantly different, in terms of the diagnosis and treatment of his myeloma. But, while it appears that the illness itself contributed to Mr B’s deterioration, we find that the failure to implement care plans and to manage risk appropriately also played a part.

We have also considered whether there was injustice to Ms A as a consequence of the service failure we have identified. Ms A was very distressed to find that her cousin was ill and living in very unsatisfactory circumstances. In the absence of help from the Trust and the Council, she worked hard to improve those conditions and to provide daily care for her cousin. She has also been put to considerable time and trouble to bring this complaint. We conclude that there was injustice to Ms A as well as to Mr B as a consequence of the service failure we have identified.

Ms A’s response to the draft report

After we had sent a draft of this report to Ms A, her solicitors wrote to us on her behalf with comments which we carefully considered. There were two main points about our draft findings.

The first was that we had not criticised the psychiatrist although he had not made an urgent referral to the GP when Mr B was in very poor physical health. However, taking account of the sequence of events (outlined earlier in this report) and the view of the Health Service Ombudsman’s Psychiatric Adviser, that the psychiatrist appeared to have acted in accordance with relevant standards and that the GP was best placed to review Mr B’s general health, we remained of the view that the psychiatrist’s actions appeared reasonable. We have commented on the psychiatrist’s lack of urgency in making a referral, but did not conclude that that constituted service failure. We therefore concluded that the finding as it appeared in the draft report remained appropriate.

The solicitors said that we had reached a finding about the support Mr B received in claiming benefit without examining whether the original applications for benefit were correct. However, the complaint we have investigated was that no one had supported Mr B to claim the benefits to which he was entitled. Our investigation established that Mr B was in receipt of relevant benefits, and that staff had helped him to access and apply for those benefits and for other financial assistance. In the absence of any evidence that there was a particular omission in his benefits, it appeared to us that the finding in the draft report remained reasonable.

Finally, the solicitors said that we should have recommended that Ms A be compensated for her legal costs. After careful consideration of the representations made by the solicitors we agreed that a separate identified sum of £1,500 would be appropriate specifically in respect of the solicitors’ costs in assisting Ms A to make her complaint. This sum, which we agreed should be paid directly to the solicitors, is in addition to the financial redress amounting to £2,000 which we recommend should be paid to Ms A.

Conclusions

Taking account of all the evidence available to us, in relation to the joint complaint about both bodies that had joint responsibility for managing Mr B’s care, we have found service failure and injustice as a consequence of that service failure. We therefore uphold this main aspect of Ms A’s complaint. We have not found service failure with regard to Ms A’s separate specific complaints about the Trust or the Council.

Recommendations

Taking account of the injustice suffered by Mr B and Ms A, we recommend that the Trust and the Council should, within one month of the date of issue of this final report on the investigation, write to Ms A to acknowledge the service failure we have identified and apologise for the impact this had on Mr B. The Trust should also apologise for the distress this caused her and the time and trouble she was put to in supporting Mr B and in making this complaint. The circumstances of this case would, in our view, have justified a substantial financial remedy for Mr B, had he survived. In recognition of the distress caused to Ms A, the efforts she made to provide appropriate care for Mr B in the weeks before his admission to hospital, and the time and trouble she has been put to in pursuing this complaint, we recommend that the Trust and the Council should provide compensation to Ms A of £2,000. We also recommend that the Trust and the Council should pay £1,500 directly to Ms A’s solicitors specifically in respect of the representations which they have provided.

We further recommend that the Trust and the Council should, within three months of the date of this final report, prepare an action plan which describes what each has done to ensure that they have learnt the lessons from the failings identified by this upheld complaint; and what they have done and/or plan to do, including timescales, to avoid a recurrence of these failings in the future. Copies of the action plan should be shared with Ms A, the Health Service and the Local Government Ombudsmen, NHS Halton and St Helens (the commissioning primary care trust), NHS North West (the strategic health authority), the Care Quality Commission and Monitor. The regulators, the commissioning primary care trust and the strategic health authority should be kept informed of progress against the action plan.

2    Generally weakened and emaciated.