Summary: Mr C was unhappy with the way in which the Council carried out a safeguarding enquiry into a concern he raised about the way in which the care home had dealt with his (late) grandmother’s broken ankle. We found there was fault with the way the safeguarding enquiry was carried out. The Council has agreed to apologise for the distress this caused Mr C and it will also review its safeguarding procedure.

The complaint

1. The complainant, whom I shall call Mr C, complained on behalf of his (late) grandmother, whom I shall call Ms G. Mr C complained about the way in which the Council responded to the safeguarding concern he raised about his grandmother. He complained the first safeguarding enquiry was not done in line with best practice guidance. Mr C claimed that, despite the seriousness of Ms G’s injuries, the complexity and multiple stakeholders involved, the Council did not organise a multi-agency planning meeting at the start and failed to involve the Clinical Commissioning Group (CCG) and the hospital in the first enquiry.
2. Furthermore, Mr C complained he had to put in much effort to convince the Council to carry out a second enquiry, even though it should have been obvious quickly that the first enquiry had not been carried out properly.
3. Mr C has said that, because of the above, he had to invest much time and trouble and it has caused him a lot of anxiety and distress.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

7. The Care Act and its Statutory Guidance, as well as the Sussex Safeguarding Adults Policy and Procedures (2019), say that:
• The council has the lead co-ordinating role for safeguarding enquiries. The council is responsible for ensuring the enquiry is undertaken and that it meets required standards.
• The Care Act recognises that safeguarding individuals needs multi-agency responsibility and stresses the need for co-operation and partnership work. Health related concerns should involve organisations such as the relevant CCG and / or Health Trust.
• A decision will need to be made at the start about whether there is a need for a formal planning meeting. Safeguarding meetings may be the best way to ensure effective co-ordination of different aspects of an enquiry that relate directly to the adult or decisions that affect them.
• The council has the lead co-ordinating role for all safeguarding enquiries but can cause enquiries to be made by another organisation or agency. The specific circumstances will determine the right person to do the enquiry.
• In the case of concerns about care homes, nursing homes or home care providers, the council must tell the CCG and seek advice on the clinical aspects of concerns. The CCG will offer clinical advice and scrutiny throughout the process, including at the early stages of decision making.

What happened

8. Ms G was living in a care home, arranged by the Council. She went into hospital following a fall in July 2020. The hospital established that she had a fractured pelvis and discharged her back to the care home on 23 July. Later that afternoon, Ms G tried to get up to go to the toilet independently, without calling for care staff to help her. She lost her balance and had a fall.
9. Ms G went into hospital again on 11 August 2020 to have an X-ray to determine if her ankle was broken. The hospital established it was broken and several days later had to amputate her leg. Ms G died in January 2021.
10. Mr C raised concerns that there were delays that amounted to neglect and resulted in Ms G’s leg having to be amputated:
• He believed Ms G’s ankle may have been broken since her fall on 23 July 2020, or even earlier since 14 July 2020, when she had a fall. He was concerned the care home had failed to spot this.
• The care home told the ambulance on 10 August 2020 not to take his grandmother into hospital yet. The family felt this decision went against medical advice and caused harm to Ms G by delaying treatment of her ankle.
11. In response, the Council carried out a safeguarding enquiry. The first safeguarding enquiry started in August 2020 and its report states that:
• GP visited on 10 August 2020 and advised that Ms G needs to go to hospital to have her ankle checked due to obvious deformity and swelling. Upon welfare check visit by the Ambulance Service at 9pm, the carer on scene advised that the manager had advised that the ambulance needs to be stood down and that they will call for an ambulance in the morning due to it being too late in the evening.
• Ms G’s situation deteriorated in hospital, and she was not able to be involved in the safeguarding enquiry.
• Mr C said his uncle visited on 9 August 2020, he noticed a significant deformation on her leg and notified him.
• Mr C said he wanted a full enquiry into the care home and the role of the hospital and ambulance service.
12. The enquiry carried out the following actions:
• It asked the home questions and for evidence.
• It asked the district nurses for records and photographic evidence
• It verified facts with the GP
• It consulted with a hospital nurse and a consultant specialist.
13. The enquiry was closed on 29 September 2020. Its report stated, amongst others, that:
• The hospital did not check Ms G’s ankle, when she went into hospital following a fall on 14 July 2020. After Ms G’s fall, the care home updated her mobility care plan and falls risk assessment. It highlighted that Ms G needed assistance from two care workers for all tasks to minimise the risk of falls. Even though she was advised not to mobilise independently, Ms G had a tendency to ignore this advice. There were no concerns about Ms G’s mental capacity as she was able to understand the information, make decisions, express her views and alert if she was in pain.
• Following return from the hospital, Ms G tried to get up to go to the toilet independently in the afternoon of 23 July 2020, without calling care workers. She lost her balance and had a fall. Ms G did not report any pain at that time and there were no noticeable injuries.
• District nurses saw Ms G five times between 27 July and 9 August 2020, to treat a long-term skin condition on her leg. The nurses did not notice anything unusual with Ms G’s ankle during these visits. She told the District Nurse on 6 August that she did not want a referral to the vascular department to review her legs because “she does not want any intervention”.
• Ms G’s son visited in the afternoon of 9 August. He noticed a problem with her leg and took a picture of it. However, he did not seek medical help and did not report anything to any of the staff members on duty at the time. He spoke to his brother and sent a photo, who also did not raise a concern with the home.
• The care home noticed on 10 August 2020 that Ms G’s leg looked unusual and called the GP. The GP visited and advised that Ms G should go to hospital to have her ankle checked due to her leg being deformed and swollen. He advised a staff member should accompany her.
• When the ambulance arrived at 10pm, Ms G was already sleeping and did not report any pain. Two night-staff were present and reported that Ms G declined to go to hospital and said she was fine and wanted to sleep. The manager suggested by phone that, as Ms G would only go for an X-Ray, it would be in her best interest to have a good night sleep and go to the hospital the following morning, accompanied by a care worker. There was a concern that she could end up waiting all night for an Xray. The home also recorded that: “I had no-one at that time to go with Ms G to the hospital”. The home updated the GP the next day, who ordered an ambulance again.
• The GP confirmed that the account of events provided by the home matched their records and his memory of events. The GP confirmed the referral was for an X-Ray to confirm if Ms G had a fracture.
• The hospital specialist consultant advised that, in the context of Ms G’s age and chronic poor skin quality, open fractures are incredibly difficult to manage. He could not advice if any delay would have changed things. However, he confirmed these injuries are limb threatening with a significant risk of amputation in this context.
• Analysis:
1. There was no evidence to suggest that Ms G’s ankle was deformed / had an obvious fracture before 9 August and that the home failed to seek medical intervention.
2. The home contacted the GP four times between 28 July and 10 August 2020, and District Nurses on 9 August, to seek medical help for Ms G. This was in addition to regular visits from District Nurses twice a week to dress and treat Ms G’s leg ulcers. They did not report or record any leg deformation.
3. Neither the home, the GP, the District Nurses or the hospital were able to advise when the fracture could have occurred.
4. Two members of staff witnessed Ms G declining going to hospital. There were no concerns about her mental capacity during this period. She therefore had the right to refuse the medical treatment. As she had capacity, there was no requirement to consult the family.
5. Staff consulted the manager. He suggested that it would be better if she has a good night sleep and arrange transport the next day, because: Ms G would only go for an X-Ray, was not in discomfort, and did not want to go into hospital.
6. There is no evidence of neglect. However, whenever a capacitated resident declines any medical intervention, this should be clearly recorded and the next of kin advised as soon as possible (after obtaining resident's consent) to prevent any misunderstandings.
14. The enquiry officer updated Ms G’s family about the enquiry on 17, 18, 19 and 21 August 2020. The officer was subsequently on leave until 1 September, and updated the family again on 3, 7, 15, and 21 September 2020.
15. Mr C was unhappy with the safeguarding enquiry and asked the Council on 5 October 2020, how the family could respond to the report and its findings. The Council responded on 14 October by saying he could provide any comments on the Safeguarding Enquiry, which it would record on file and act on as appropriate.
16. Mr C submitted a detailed 20-page document on 27 October 2020, setting out his concerns. He said the enquiry left too many questions unanswered and did not result in sufficient action to prevent others from being at risk too. In the letter, Mr C expressed he was unhappy with the way the enquiry was carried out. He had many questions about this and about the findings.
17. Mr C said that, when he raised the above concerns, it took a lot of effort, and an unreasonable amount of time, until the Council accepted it should re-open the enquiry. He said he had several conversations with the safeguarding team which eventually led to the second enquiry.
18. The CCG emailed the enquiry officer on 4 November to say the enquiry it received was very thorough. However, it did say the enquiry officer should ask the care home for assurances around the management of falls to prevent potential harm to others. It said it was important to establish if the home had a falls policy and pathway/protocol to follow, if staff was trained in this, if the falls risk assessment and care plan were robust etc. The enquiry officer forwarded the questions to the care home the same day, which it responded to.
19. In response to Mr C’s concerns, the Council carried out an audit on 10 November 2020 and re-opened the safeguarding enquiry on 17 November 2020. The audit found the following shortcomings:
• The Quality Monitoring Team and CCG were consulted and involved during the enquiry but should have been consulted at the outset.
• It is understandable the family was unhappy the home was asked to investigate itself, taking into account that the home manager was implicated in the concerns themselves. However, the social worker did not solely rely on this, but employed a variety of methods. Nevertheless, taking into account the importance of transparency and accountability, the care home should not have been expected to make their own enquires in this case. There should have been an external enquiry.
20. On 17 November 2020, the Council reopened the safeguarding enquiry, in response to Mr C’s concerns. It found, amongst others that:
• The home informed Ms G’s next of kin of her fall on 23 July 2020, but not the Care Quality Commission (it only did this three weeks later).
• It is unclear whether not having a care worker to accompany Ms G to hospital, had an impact on the manager’s decision to agree with Ms her wish to delay her hospital admission.
• The home manager said the home carried out a risk assessment on 4 August 2020, which concluded that Ms G would need a wheelchair. However, this was not subsequently changed in her care plan.
• The CCG reviewed the care plans and risk assessments of residents in relation to falls prevention and found the standard of the recording of poor quality.
21. The enquiry also made further enquiries with various stakeholders involved including:
• The Ambulance Service, who said its ambulance crew remembered that Ms G was not in any apparent pain. The crew did not see any reg flags of a fracture. It witnessed Ms G saying she did not want to go into hospital and did not have a concern about her capacity to make this decision. The ambulance service said it would also have questioned whether going to an emergency department late at night would be in the patient’s interest.
• The hospital, who confirmed there was no documentation (in either the nursing or medical notes) of any indication that Ms G had an ankle fracture during her admission in July 2020.
• The hospital nurse looking after Ms G, who said her amputation was down to ulcers on her leg that had not healed for a long time. She said she was unable to say if a few hours delay in hospital admission could have made a difference in terms of causing harm.
• The consultant who carried out the amputation told the enquiry officer that he could not say if any delays would have changed the outcome.
22. Following the second enquiry, the care home developed an action plan to address any shortcomings, which the CCG subsequently approved. The plan was specifically around the quality of recording in both care plans and risk assessments.
23. The overall conclusion reached through the safeguarding enquiries, was that:
• It was not possible to conclude how and when Ms G sustained the fracture to her left ankle. The District Nurses confirmed that during the visits between 27 July and 9 August 2020, nurses carried out full nursing assessments, took wound photographs, and put an appropriate care plan in place. There was 'no clinical indication to suggest anything other than long standing leg ulceration'.
• The GP and ambulance crew saw Ms G on 10 August 2020, neither of whom felt Ms G needed immediate attention.
• The manager of the home took a best interest decision that Ms G should not go into hospital late at night and should instead go the next day. Neither the GP nor the ambulance service feel this was an inappropriate decision to make.
• However, the home would ensure it encourages residents to accept medical interventions in a positive manner and provide the residents with all the information to assist decision making and consideration of risk as well as consequences of refusal of medical interventions.
• Furthermore, the home showed poor practice in relation to the quality of the recordings in the care plans and risk assessments.
24. The Council said that, following the audit, it gave feedback to the social work practitioners on these important learning points. It said there has also been follow up on training, recirculation of the clinical safeguarding pathway, and some wider issues around communications with the Quality Monitoring team, CQC and the CCG, in terms of provider monitoring and assurance for residents in local care homes.
25. In relation to operational safeguarding practices and management support and oversight, it said further work will be undertaken as part of the work on reviewing service delivery and redesigning some of the pathways.
26. Mr C remained unhappy with the enquiry. The Council asked Mr C on 30 March 2021 what his complaint was about, to which he replied on 11 August 2021. Mr C complained about the first safeguarding enquiry and the lack of engagement with the family. He complained:
• It took months to convince the Council to reopen the enquiry. The second enquiry discovered various shortcomings with regards to the home which the first one had failed to sport. This resulted in various actions which the home would have to carry out.
• There should have been a formal multi-agency planning meeting at the start. The enquiry should also have involved the CCG and the hospital. Very little independent evidence was gathered, which left the home controlling the narrative of what happened.
27. In response, the Council said that:
• The first enquiry was thorough, well recorded, and appropriately considered the alleged neglect of Ms G’s ankle and the circumstances.
• The audit identified some valid learning points, which did not have any direct impact on the outcome of the safeguarding enquiry. However, they might have given more confidence in the response by the service. These learning points have been discussed with the social workers and fed back to the staff who provide safeguarding training in the department.
• The audit found the social worker employed a variety of methods in the first enquiry, not solely causing the provider to enquire, but a range of other means to bring context and understanding of what happened.
• However, particularly in the circumstances and the potential criticism of the care home, and the importance of transparency and accountability, the home should not have been expected to make their own enquires. There should have been an external enquiry.
• Furthermore, the enquiry should have collected, at the outset, information from the Quality Monitoring Team, CQC and Health partners. This would have aided the planning of the enquiry and ensured a medical perspective was obtained at the outset. The enquiry could have benefited from clinical scrutiny by the CCG safeguarding team and advice from QMT. The lead enquiry officer acknowledged they could have asked the hospital and District Nursing team to formally look at specific points regarding clinical care. Following the audit, feedback was given to the social work practitioners on these important learning points.
• There are quite a number of contacts with the family within the records, which indicate that considerable efforts were made to work with Mr C as Ms G’s main representative of the family.

Analysis

28. The Council had already acknowledged that the first safeguarding enquiry should have organised a multi-agency planning meeting at the start.
29. The audit and subsequent second enquiry, which was in response to Mr C’s complaint, found additional shortcomings, which resulted in action points for the care home to address.
30. Further to the shortcomings already identified by the Council (see paragraph 19 and 27):
• The first enquiry failed to try and establish if Ms G may have had the broken ankle when she was admitted to hospital on 14 July 2020, but the hospital failed to spot this. This is something Mr C had implied.
• The enquiry officer did not check the version of events presented, with the ambulance crew who attended that night: did Ms G refuse to go to hospital; did she seem to have capacity; did the crew have any concern about this?
• The safeguarding reports showed the CCG and the hospital were more closer involved during the second enquiry.
• The audit and second enquiry identified short comings and action points to address these that the first enquiry had not.
31. The safeguarding enquiry found there is no evidence to conclude the fracture happened before 9 August. If it did happen before 9 August, there is no evidence to conclude it was so obvious that her leg was fractured that staff should have raised a concern about this with the GP. There is no evidence to conclude that Ms G’s amputation was due to her fracture, rather than her ulcers, or that it could have been prevented if she had been admitted on 10 August at 10pm, rather than the following day. It was also confirmed by the GP and ambulance that Ms G was not in pain
32. I found the records showed the enquiry officer regularly updated during the first safeguarding enquiry.
33. Mr C told the Council on 5 October 2020 that he was unhappy with the safeguarding enquiry. It told him on 14 October he could provide any comments, which he did on 27 October. The Council reviewed the safeguarding enquiry and re-opened it on 10 November 2020. My view is the Council responded to Mr C’s concerns about the first safeguarding enquiry in an appropriate manner and reopened the enquiry within a reasonable timeframe (three weeks).

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Agreed action

34. The Council should, within four weeks of my decision:
• Provide an apology to Mr C for the shortcomings of the first enquiry, the shortcomings identified through both enquiries, and the distress and time and trouble these have caused him.
• Review its safeguarding procedure to ensure it considers, and records, at the start of an enquiry if it would be appropriate to ask the responsible care provider to investigate the concerns raised themselves.
35. The Council has told me it has accepted my recommendations.

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Final decision

36. For reasons explained above, I have upheld Mr C’s complaint.
37. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman