Summary: We investigated a complaint about the care provided to Mr D by Plymouth City Council and Livewell Southwest. We found no fault by either organisation.

The complaint

1. Mrs C complains about the care Livewell Southwest provided to her son, Mr D. Livewell Southwest provided his care on behalf of the Council. Specifically, Mrs C complains:
• The district nurses did not do a medication audit despite her raising concerns several times Mr D was not given his medication.
• The safeguarding enquiries were inadequate. She saw notes from the care workers which included mention of mice being in Mr D’s room and it being dirty and unsafe for him.
• The application for an Independent Mental Capacity Advocate (IMCA) was made to the wrong team. Mr D was held against his will and nothing was being done to protect him. Mrs C says they sent the application for a personal household team when it should have been community.
• Mrs C believes everyone just assumed Mr D’s father held a Lasting Power of Attorney (LPA) for his health and welfare, but despite numerous requests, no one has provided her with proof this was the case.
2. Mrs C feels no one offered a solution on how to manage Mr D and his condition and he was left in his father’s house which she considered to be a dangerous environment. She explains he died in appalling conditions which could have been prevented had her concerns been acted on.
3. Mrs C wants an acknowledgement more could have been done to make Mr D’s last days more comfortable and service improvements to ensure no other patient suffers similar circumstances.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation acts to stop the same mistakes happening again.
7. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered the complaint Mrs C made to the Ombudsmen and information she provided by email. I also considered the information the Council and Livewell Southwest provided in response to my enquiries.
10. I shared a confidential draft with Mrs C, the Council and Livewell Southwest to explain my provisional findings and invited their comments on them.

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What I found

Background

11. Mr D had Mitochondrial Encephalomyopathy, Lactic Acidosis, and Stroke-like episodes (also known as MELAS) in 2015. MELAS causes muscle weakness, pain, headaches, loss of appetite, and seizures.
12. Mr D lived with his father who cared for him, alongside a team of care workers who provided 24-hour support. Mr D’s father and sister held LPA for his health and welfare and after Mr D lost capacity in 2019, they decided in his best interests.
13. Mr D died in February 2022.

Safeguarding

14. Mrs C complains the safeguarding enquiries by the Council and Livewell Southwest were inadequate and did not take any action to protect Mr D.
15. The Care Act 2014 sets out how local authorities should protect adults at risk of abuse or neglect. This is known as safeguarding. The Act says a Council must enquire if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency investigation.
16. I reviewed the Council’s safeguarding framework and its safeguarding policy. They are in line with the Care Act 2014.
17. Mrs C made 43 safeguarding referrals to the Council between August 2020 and January 2022. The Council closed many of these without a full investigation because the issues raised were considered through conversations with Mr D’s father and the professionals involved in his care. The Council put plans in place to help support both Mr D and his father and considered this action enough to close the safeguarding referral.
18. Livewell Southwest completed three full safeguarding enquiries in September 2021, December 2021 and January 2022 which combined several of the referrals Mrs C raised.
19. I have reviewed all the referrals Mrs C made, and the safeguarding enquiry documents from the Council and Livewell Southwest.
20. The enquiries were proportionate and considered all the available evidence. Livewell Southwest recorded its actions and decision. Mr D lacked capacity so they spoke to his father about his best interests because he held LPA for him. Livewell Southwest completed the enquiries in line with the Council’s policy.
21. The enquiries did not find any evidence to support the allegations made by Mrs C, but two of them did result in changes to Mr D’s care plan to ensure he was receiving nutritional support.
22. While I appreciate this does not match with Mrs C’s experiences, the Ombudsmen does not look at whether the outcome of a safeguarding enquiry is correct, only if they followed the correct process.
23. I found no fault.

Concerns about medication

24. Mrs C feels care workers did not manage Mr D’s medication. Mrs C says more than once when she went to see Mr D, he had not had his medication. When she looked for it, it was locked away. Mrs C asked for a medication audit which she felt would prove Mr D’s medication was not given to him as prescribed. This did not happen.
25. Livewell Southwest did a safeguarding enquiry in September 2021 about this issue. The enquiry found no evidence of medication being withheld from Mr D and no professionals involved in his care had concerns about this matter. Livewell Southwest did remind staff of the supplements and medication available to Mr D so they could speak to his father about giving him them, if they felt he needed it.
26. I asked Livewell Southwest why it did not do a medication audit. It explained it spoke to everyone who cared for Mr D, no one had any concerns. As Mr D was also known to refuse his medication, and care workers did not give Mr D his medication, it decided an audit was not necessary.
27. Livewell Southwest and the people caring for Mr D could find no evidence to suggest Mr D’s medication was being withheld. A safeguarding enquiry also found no evidence to support the allegation. Livewell Southwest has explained why it did not do a medication audit and this is reasonable.
28. I found no fault.

Complaint about mice in the house

29. Mrs C worried the house was unclean and unsafe. She says she saw mice droppings in his room and care notes which mentioned mice being in Mr D’s room. Mrs C gave me copies of emails she sent to Mr D’s occupational therapist at Livewell Southwest, and a copy of the mentioned care notes.
30. Livewell Southwest told me none of the professionals who visited Mr D raised concerns about mice.
31. The occupational therapist who Mrs C emailed, visited the property several times and did not see any evidence of mice or mice droppings on their visits. However, as Mrs C raised the issue, the occupational therapist passed her emails to the Council’s social worker so they could decide if more action was necessary.
32. I have seen evidence which shows action was being taken within the home to actively try to deal with the issue. The Council took no further action because of this. This was enough to satisfy the Council and a safeguarding investigation was not necessary.
33. I found no fault.

Application for IMCA

34. Mrs C complains the Council sent an IMCA application to the wrong team. Mrs C says the application should have gone to the community team.
35. Mr D’s social worker sent a referral for an IMCA in November 2021. The advocacy service declined the application because Mr D had a registered LPA for health and welfare already in place.
36. An IMCA is a role set out in The Mental Health Act 2005 (Independent Mental Capacity Advocates) (General) Regulation 2006. The Social Care Institute for Excellence explains “IMCAs are a legal safeguard for people who lack capacity to make specific important decision: including making decision about where they live.” It adds an IMCA can be appointed when “there is no one independent of services, such as a family member or friend, who is ‘appropriate to consult’”.
37. The social worker acted correctly by referring Mr D to the advocacy service when Mrs C expressed concerns about him being held against his will. The application was rejected because he did not meet the threshold for an IMCA because he had an LPA, not because it was sent to the wrong team.
38. I found no fault.

Concerns over Lasting Power of Attorney

39. Mrs C complains the organisations did not check Mr D’s father held a Lasting Power of Attorney for Mr D’s health and welfare and just assumed this to be the case based on his word. Mrs C has asked numerous times for proof this was the case, but she has not received a clear response.
40. The Mental Capacity Act 2005 set up the role of the Public Guardian. The Office of the Public Guardian (OPG) helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves. This can be done through appointing an LPA, also called an attorney. An LPA is a legal document that lets a person appoint one or more people to help them make decisions or make decisions on their behalf when they are no longer able. This can be for health and welfare or financial, or both. The OPG can be contacted to check if someone has an appointed attorney.
41. I asked the Council and Livewell Southwest if they contacted the OPG to check if Mr D had an LPA. I have seen evidence Livewell Southwest contacted the OPG in November 2019 and the OPG confirmed who Mr D’s deputies were.
42. If Mrs C has concerns over how Mr D’s father used his LPA, she can make a complaint to the OPG. This is not within our remit.
43. I found no fault.

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Final decision

44. I do not uphold this complaint. I have found no fault with either organisation.

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Investigator's decision on behalf of the Ombudsman