Report Summary
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The complaint
Mr and Mrs Taylor complained to the Ombudsmen about the care their son Frank received from the Oxfordshire & Buckinghamshire Mental Health Partnership Trust (the Trust)[1] and thereafter Buckinghamshire County Council (the Council) from June 2001 to September 2003. The names used in this report have been changed to protect the anonymity of the complainants.
During the period Mr and Mrs Taylor have complained about, Frank lived in a residential Care Home which was being run by the Trust before it entered into a section 31 agreement[2] with the Council to work together in order to provide services to those in need of health and social care. Under the agreement responsibility for the day-to-day running and management of the Care Home passed from the Trust to the Council. Frank has a need for a residential care setting as he is an adult with severe learning disabilities. He has no speech; cannot bathe, shave or dress himself; needs assistance to go to the toilet; and needs to wear incontinence pads at night, or for any lengthy periods spent outdoors. He needs one-to-one attention for about 95% of his waking time.
Whilst he was residing at the Care Home Frank’s care needs were never properly assessed, and a number of significant failings in respect of the level of care he received were identified. Although Frank’s parents voiced their concerns to the Trust and the Council there was both delay in responding to these concerns, and a great deal of confusion as to which body should address the separate aspects of the complaint. Whilst at home during the Christmas 2002 break Frank suffered from anxiety and depression and refused to leave the house. His parents feel that was because he had a fear of returning to the Care Home. They accommodated Frank at home without any external support until March 2003, when Frank was returned to the Council’s care. When Frank’s needs were finally assessed, and a Care Plan prepared, he was moved to a residential home which provided the level of care and support that an adult with his complex needs required, although Frank has since moved from that home.
Our investigations and report
Although we have separate jurisdictions over different parts of the complaints, we felt that it was in the best interests of the complainants and their son to have a single point of reference for their separate complaints to each Ombudsman. Many aspects of the health and social care complaints are inextricably linked and we have concluded that our separate investigations, conclusions and proposed remedy are best represented in a joint report. This is the first such report we have issued under the Regulatory Reform (Collaboration etc between Ombudsmen) Order 2007 which enables us to conduct joint investigations and to report jointly about matters which would previously have been dealt with separately by the individual Ombudsmen.
The delivery of a service through a section 31 agreement poses interesting and difficult questions about public bodies working in partnership. We are particularly concerned to ensure that robust and transparent governance arrangements are in place, in order to provide clear accountability for the actions of authorities. In this way, a complainant can be more readily signposted to the body that can better deal with a complaint.
We are also concerned that all recipients of health and social care – irrespective of their vulnerability – and their relatives or others concerned about their care, should have their human rights taken into account when plans and provision are made. Given the events which transpired in respect of Frank’s care, we specifically asked both the Council and the Trust how they had ensured that this was the case. In response the Trust acknowledged that there appear to have been lapses in its predecessor’s consideration and maintenance of Frank’s human rights, and that the result of this was that the care and treatment delivered was below an acceptable standard. The Council has said that the home, in which Frank and other residents had been living for years, did little to ensure their right to privacy and family life, although at the time of taking responsibility it was not aware of the extent of the problem.
Findings
Maladministration causing injustice. We find that during his time in the Care Home Frank’s care needs were never properly assessed and the level of care he received was below that which he and his parents were entitled to expect. In addition, we find that Mr and Mrs Taylor were wrongly charged for items which should have been paid for from Frank’s funding. We also find that, as a result of the inability of both the Council and the Trust to respond appropriately to their concerns, Frank’s parents were caused a great deal of anxiety and distress in attempting to care for him for a period of three months at home without any external support, as they did not feel that he could return to the Care Home about which they were so concerned.
Throughout the period complained about agreement could not be reached about who should take responsibility for Frank. This dispute was not resolved until, after extensive searches, the Council moved Frank to an out-of-County placement. The Council has said that although it should have been aware of the prevailing conditions within the Care Home when it entered into the agreement, it was only when it took over the management functions that the true extent of the problem came to its attention. Thereafter, it took the unilateral decision to place Frank in a more appropriate care setting commensurate with his needs which has resulted in it being responsible for the costs of his care, whereas they were previously being met exclusively by the Trust. The Council has said that it took this decision with Frank’s best interests in mind. Whilst the Trust was maladministrative in allowing the Care Home to deteriorate to the condition that it was in when the transfer of management took place, the Council’s failure to properly apprise itself of those conditions when agreeing to take over responsibility for managing and delivering appropriate care to its residents, also amounts to maladministration.
In terms of Frank’s human rights it would be for the courts to determine whether there has been a breach of the Human Rights Act 1998 and if so to make binding declarations and decisions. We have considered whether relevant issues were engaged in Frank’s case and whether they were properly taken into account in a timely way by the Council and the Trust. We have concluded that Article 3 (which includes inhuman or degrading treatment), Article 8 (which includes the right to respect for private and family life and home) and Article 14 (prohibition of discrimination) were engaged in Frank’s case, and that the Council and the Trust both neglected to give those issues proper or timely consideration. Not all the relevant issues were properly taken into account in Frank’s case (nor, evidently, in the case of other residents in the home). This failure was so significant as also to amount to maladministration and contributed to the injustice suffered by both Frank and his parents. A proper consideration of human rights issues at any point would have led to improvements in Frank’s and his parents’ situation.
The Health Service Ombudsman found that whilst Frank was under the care of Trust staff the diagnosis of autistic spectrum disorder had not been firmly established and the diagnosis of bipolar affective disorder was provisional and made in the absence of other confirmation. The Health Service Ombudsman found that the records on this point do not seem entirely accurate, which is maladministrative, but she nevertheless concludes that no significant injustice has resulted. Therefore, although she finds that there was maladministration in respect of the recording (particularly in respect of references to autism) she does not uphold this aspect of Mr and Mrs Taylor’s complaint. She concluded that the prescription of several medications in combination was not inappropriate and did not itself amount to a failure in the service provided to Frank. However, she noted that the monitoring of the medication should have been better, and she took that into account when considering the more general concerns about the care provided.
Remedy
Both the Council and the Trust have accepted that the conditions within the Care Home at the time of the events about which Mr and Mrs Taylor have complained were unacceptable. This undoubtedly had an adverse effect on both Frank and his family. The Council has said that when it became aware of the true extent of the problems within the Care Home it could have cancelled the agreement to take over its management. It elected not to do so as it felt that this would do little to assist those who were living in the Care Home. Although the Ombudsmen are mindful of this, neither that nor the decision to move Frank to a more appropriate care setting has provided a full remedy for Frank or his parents for the injustice they were caused prior to his move.
We recommend that a payment of £32,000 is made. In determining this sum we considered the injustices identified:
- The expenses that Mr and Mrs Taylor paid out unnecessarily while Frank was resident in the Care Home (although they estimate this to be £20,000 in total, it is not now possible to substantiate that this total is comprised exclusively of costs that should have been met by the Care Home. We concluded that a more reasonable sum, in respect of the expenses unnecessarily incurred directly by Mr and Mrs Taylor, is just in excess of £10,000).
- The acute anxiety and distress Frank and his parents must have experienced as a result of the poor standards of care he received whilst he was resident in the Care Home.
- Mr and Mrs Taylor’s efforts in physically looking after him without any external help or support from December 2002 to March 2003 during which time the Care Home was being run and managed by the Council, and the costs that they incurred during this time.
- The distress that the whole episode has caused to Frank, Mr and Mrs Taylor and Frank’s siblings which the Council accepts was compounded by its failure to deal with their initial complaint of September 2002 in an appropriate or timely fashion.
We therefore recommend that the Trust and the Council each make a payment of £16,000. We leave it to Mr and Mrs Taylor to decide how best to use this payment.
The Council has questioned why it should be asked to pay £16,000 since it was not responsible for the expenses unnecessarily incurred by Mr and Mrs Taylor, and the conditions within the home remained the same throughout the period complained about: when both it and the Trust were responsible for its day-to-day management for equal periods of time. It has suggested that the Trust be asked to reimburse the £10,000 expenses, and that the remaining £22,000 compensation be shared equally: it has said that it cannot understand the rationale for asking the Trust to pay £6,000 and the Council £16,000 for what amounted to the same fault – the poor standards of care Frank received whilst being accommodated within the Care Home.
We consider that it is reasonable to ask the Council to pay £16,000 as it was responsible for the day-to-day management of the Care Home at the time when particularly serious injustice occurred. This included the three-month period when Frank was being accommodated at home without support, and the costs Mr and Mrs Taylor incurred during this time, as well as the distress and anxiety caused to them. It must also recognise that its failure to deal with their complaints in accordance with the statutory timescales in place at that time further frustrated their attempts to ensure that Frank relocated to a more appropriate care setting as soon as was possible following their initial request that this was done, in September 2002.
Matters considered solely by the Health Service Ombudsman
In addition to the matters considered by both Ombudsmen, Mr and Mrs Taylor were concerned about two matters which relate specifically to the exercise of clinical judgment and which therefore fall to the Health Service Ombudsman to consider: diagnoses entered in Frank’s clinical records; and the prescription of certain medication. The Health Service Ombudsman found that entries in Frank’s records relating to two particular diagnoses had no robust evidential basis (see paragraphs 67 to 71). However, she concluded that no significant injustice has resulted from these entries in the records. She therefore makes no recommendation on this point, but points out to Mr and Mrs Taylor that it is open to them to ask the Trust to contact the current holders of the records and arrange for a note to be added to that effect. On Mr and Mrs Taylor’s concerns about the prescription of particular drugs, the Health Service Ombudsman found that they had been prescribed appropriately, and so she concluded that there was not a failure in service in this respect. However, she noted that subsequent monitoring of the medication was not carried out as it should have been, and so contributed to the general poor level of service provided to Frank
[1] During the period covering the events discussed in this report the predecessor Trust was known as Buckinghamshire Mental Health NHS Trust.
[2] An agreement made under section 31 of the Health Act 1999.
