Decision Date: 23 August 2022
What happened
In July 2021, Mr and Mrs X raised concerns about staff administering excessive sleeping tablets which had been prescribed to Mr B (Mrs X’s son), who has learning difficulties and resides at a care home, namely Poppy Cottage Ltd (the Care Provider). The care was commissioned and funded by Buckinghamshire Council.
Following Mrs X’s concerns the Care Provider stopped giving the medication and investigated her concerns. A safeguarding investigation undertaken by the Council found neglect and acts of omission. Mr and Mrs X complained to the Care Provider in November 2021.
In its response the Care Provider confirmed the following. The tablets were prescribed to be taken when needed, which its staff gave every other night at the direction of its head of care and senior support worker, without approval from its registered manager. The staff did not understand why they were giving the tablets to Mr B, therefore they were likely given when not needed. The staff had not informed Mr B’s family members of the change of medication. The care provider stated that to prevent this in the future, it would train staff, have proper protocols and audits in place, and discuss change in medication with Mrs X.
Mr and Mrs X noted that the Care Provider had failed to provide an apology and were not entirely happy with the response. As such, they complained to the Ombudsman in December.
During its Investigation of Mr and Mrs X’s complaint, the LGSCO also noted that between June and September 2021, there were at least five other safeguarding enquiries substantiated for neglect and acts of omission which included missing medication and poor records around administration.
The CQC’s reports of inspections carried out in September 2021 and March 2022, also mentioned breach of regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Regulation), as medication was not managed and administered properly, and protocols around ‘when needed’ medication were not always in place.
What was found
The Ombudsman found Poppy Care Ltd was at fault for following:
- giving Mr B sleeping tablets every other night for seven months, without assessing whether he actually needed them;
- not raising concerns about the regularity of ‘when needed’ medication being given, despite accepting that its medical audits were not detailed enough; and
- for not providing any explanation as to why it failed to discuss change of medication with Mr B’s family, and for a lack of written apology.
There was injustice to Mr B as he was exposed to risk of harm, by giving him strong medication against prescribing advice for a prolonged period of time and causing unnecessary distress to Mr and Mrs X for the faults.
Additionally, the LGSO found that the Care Provider had failed to give due regard to Articles 8 and 14 of the Human Rights Act. The Care Provider treated Mr B less favourably than someone who is able to articulate for themselves or who can manage their own sleep pattern, and this failure around article 14, also impacted Mr B’s rights under article 8 (in this instance, involving decisions around consent to treatment and personal care). The Care Provider also failed to have due regard for its duties under the Equality Act as it didn’t consider the way medication was administered to Mr B.
Furthermore, the LGSCO found the Care Provider’s complaints process at fault as it caused further distress, by the lack of a prompt apology. This was also in breach of Regulation 20 as the Care Provider failed to notify Mr and Mrs of the improper administering of the sleeping tablets.
Buckinghamshire Council also stated that the Care Provider should have provided a more comprehensive level of detail about its investigation, how it would prevent it in the future, and that its responses lacked empathy. The Council agreed its own complaints handling process should have recognised that Mr and Mrs B’s concerns were not fully addressed by the Care Provider. As such, it has reviewed its own processes to make sure it takes a more active role in mediating complaints between the service user and the care providers, to achieve an adequate resolution.
In May 2022, the Care Provider issued an apology for the mismanagement of the medication between November 2020 and July 2021, and for the harm and distress caused to Mr B, Mr and Mrs X. The Care Provider stated it had learned its lessons around monitoring and auditing of medication.
Whilst the Ombudsman was satisfied with the CQC and Council’s monitoring improvements of the Care Provider, the injustice caused to Mr B and Mr and Mrs X, had not been fully remedied. In light of this, the Ombudsman recommended that Buckinghamshire Council (as they commissioned the care) pay Mr and Mrs X £1,500 on behalf of Mr B. A further £1,000 to Mr and Mrs X for the injustice caused. The Council agreed.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Ombudsman normally expects someone to complain to the Care Quality Commission about possible breaches of standards.
Here, it took the matter up directly because CQC cannot remedy individual injustice in the same way the Ombudsman can. Also, the CQC cannot investigate the way in which care providers respond to complaints.
Whilst the Ombudsman does not have the jurisdiction to decide on breaches of the Human Rights or Equality Act (that is for the Court) we can see from this report that it will give regard to whether due consideration was given to these rights themselves, when deciding on a complaint.
That makes sense because publicly funded providers are bound directly by the Human Rights Act under the Care Act.
This also serves as a reminder that complaints against private providers still go to the Ombudsman and the CQC’s role is not one of complaint investigation but inspection. As the council commissions the provider to deliver services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
The council here acknowledged it had a part to play in the complaint investigation and although the Ombudsman does not explicitly describe the fault it found with the Council it does recommend financial reparation from the Council to the tune of £2500. This backstop responsibility is a good reason for even those paying full cost, above the capital threshold, to get their council to arrange care provision for them, but s18(3) of the Care Act (which will mean that this can be required) is not being brought into force for anyone above threshold who is not lacking in capacity to make their own arrangements, for some time to come.
In this complaint both the council and the Ombudsman, in their respective investigations found fault with the providers’ complaint responses for ‘lacking empathy.’ It may seem odd that empathy is a requirement on which fault can be found but the Ombudsman makes reference here to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Regulation 20 relates to duty of candour and although the essence of this is about transparency, and particularly the provider giving notification of safety incidents to the relevant person (service users’ representative) it also requires the inclusion of an apology. This is set out in regulation 20 (4) which requires the original notification of an incident to be followed up with provision of details of the enquiries taken by the provider, the results of those enquiries and an apology. ‘Apology’ is defined in the regulations as ‘an expression of sorrow or regret in respect of a notifiable safety incident.’ Consequently here, the lack of ‘empathy’ is seen to be fault and add to the distress caused.
The full Local Government Ombudsman report on the actions of Buckinghamshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/residential-care/21-013-987