Lewis Mendelson

Coroner's concerns

AI summary

Local authority backlogs and staff shortages led to a lack of DoLS and care reviews. Hospital care lacked best interests meetings, IMCA involvement, and caused distress with unbeneficial procedures, including End of Life Care decisions without proper assessment.

View full coroner's concerns

The inquest was told that he met the criteria for a DoLS but due to backlogs within the Local Authority one was not in place at the time of his death: He also met the criteria for an annual review of his care this had not taken place for over 2 years due to staff shortages. There was no designated Social worker overseeing his care due to staffing shortages; He was treated in hospital with no IMCA in place or foral best interests meeting taking place. As a result it was unclear if the treating physicians understood the complexity of his learning disability and communication issues that flowed from his disability: The inquest heard that repeated attempts were made to insert a nasogastric tube causing him great distress and where there was limited evidence that it would be beneficial;
3. He was placed on End of Life Care with no best interests meeting taking place or discussion with an IMCA or assessment of what should happen if he rallied as he did.

Responses

2 respondents

Stockport Council Local Authority / Fire Service

12 Feb 2020 PDF

Action Planned

Stockport Council is creating a dedicated review team to address the backlog of annual reviews in the Learning Disabilities Service, to be funded throughout the financial year 2020/21. (AI summary)

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Dear Ms Mutch Re: The Regulation 28 Report submitted to Stockport Metropolitan Borough Council regarding Lewis Victor Mendelson This response addresses the concerns under paragraph 1, "The MATTER OF CONCERN' Stockport Metropolitan Borough Council are unable to comment in respect of paragraph 2 which refers to the individual' s hospital treatment as,in accordance with the Mental Capacity Act 2005, the decision maker for best interest decisions in relation to medical treatment had been the NHS Trust: The arrangement ofan IMCA and formal best interests meeting had been the responsibility of the Trust as this had concerned medical decisions. In this instance the NHS Trust would have been under a duty to consult with Stockport Council as stated in the Mental Capacity Act "_anyone engaged in caring for the person or interested in his welfare_' Ultimately, if the matter had gone to the Court of Protection; the NHS Trust would have been the applicant: The same issue applies in relation to paragraph 3 as this would have been the decision of the NHS Trust, or alternatively the General Practitioner, to place the individual onto the pathway for End of Life Care: Response to "The MATTER OF CONCERN" , Paragraph 1 Stockport Council acknowledges that there has been a historic issue with regards to the timely undertaking of annual reviews in the Learning Disabilities Service. This is not an issue unique to Stockport Council alone as indeed many other local authorities are also challenged in this area, due to the present resources, service pressures and competing priorities. solely

However; at present Stockport Council is in the process of addressing these matters: A business case has been presented and agreed, in order to fund and create a dedicated review team comprising initially of six social workers plus a team manager - including an option to increase staff numbers as required with a view to addressing the entire backlog of reviews throughout the financial year 2020/21. Furthermore, additional work will be undertaken with the intention of evaluating Stockport Council' $ staffing resource and implementing a sustainable model for managing reviews from April 2021 onwards. For individuals who are supported by Stockport Council within community settings and who may be deprived of their liberty, there will be an expectation that, on review, the allocated social worker will triage the case in accordance with the national Association of Directors of Adult Social Services (ADASS) guidance: trust that the above information provides you with the reassurance that Stockport Council are addressing the areas of concern that you have raised in relation to paragraph 1 of the Regulation 28 Report. However, if you do require further details, please do not hesitate to contact me:

the Department of Health and Pensions Central Government

28 Apr 2020 PDF

Action Planned

The Department of Health and Pensions notes that mandatory learning disability and autism training for health and care staff is being developed and tested during 2020/2021 and will be rolled out in the future. (AI summary)

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Dear Ms Mutch

There are several different routes to reviewing care and support plans. These include:

• A planned review, the date for which is agreed with the individual during care and support, or support planning, or through general monitoring;

• An unplanned review, that results from a change in needs or circumstance that the local authority becomes aware of, e.g. a fall or hospital admission; and,

• A requested review, where the person with the care and support, or support plan, or their carer, family member, advocate or other interested party makes a request that a review is conducted. This may also be the result of a change in needs or circumstances.

It is the expectation that local authorities should conduct a review of the plan at least once every 12 months, although a light touch review should be considered six to eight weeks after agreement and sign-off of the plan and personal budget, to ensure that the arrangements are accurate and there are no initial issues to be aware of. This light-touch review should also be considered after revision of an existing plan to ensure that the new plan is working as intended.

Councils are accountable to their local populations and that includes accountability for meeting their statutory duties under the Care Act 2014.

If an individual is unhappy with the care arranged by a local authority, they can make a complaint using the local authority complaints process. If they remain dissatisfied, they can seek assistance from the Local Government and Social Care Ombudsman.

In relation to Deprivation of Liberty Safeguard (DoLS), we recognise that the current DoLS system is bureaucratic and inefficient and that it fails to provide vital safeguards to people who lack capacity to consent to their care and treatment arrangements.

As a short-term solution, the managing local authority can use an urgent authorisation while also making a request for a standard authorisation. Looking forward, the Mental Capacity (Amendment) Act (2019)3 introduced Liberty Protection Safeguards (LPS), that are planned to replace DoLS in October 2020. LPS will provide protections for individuals in a more streamlined and focused way. Each application will take the responsible body less time to process and more people will be provided with safeguards than under DoLS.

We are aware that social worker support is not always as available as it should be for people across our health and care system, leading to health inequalities and poor outcomes for people. Social workers have a professional duty and an accountability not just to tackle these health inequalities but to lead solutions and protect people’s rights. That is why the Chief Social Worker for Adults in the Department of Health and Social Care is leading work in Government, with our systems partners, the wider public and crucially, experts by experience, to develop social work and social care practice in this critical area.

3 http://www.legislation.gov.uk/ukpga/2019/18/enacted

To support local authorities, we are providing councils with access to an additional £1.5billion for adults and children’s social care next year. This includes an additional £1billion of grant funding for adults and children’s social care, and a proposed 2 per cent precept4 that will enable councils to access a further £500million for adult social care. This £1.5billion is on top of maintaining the £2.5billion of existing social care grants and will support local authorities to meet rising demand and continue to stabilise the social care system.

For Stockport, this means that the Council is set to receive an additional £4.8million from the new Social Care Grant and the Council could raise up to £3.6million of additional funding specifically for adult social care in 2020/21 following the introduction of the precept5. In addition, Stockport Council will receive £11.6million of funding through the maintenance of the existing Adult Social Care grants in 2020/21. Future funding for social care will be set out at the next spending review.

I share your concern that no best interests’ meetings were held to consider Mr Mendelson’s care in hospital. While a formal best interests meeting is not a duty, under section 4 of the Mental Capacity Act (2005)6 (MCA) the decision maker must take into account, if it is practicable and appropriate to consult them, the views of anyone named by the person as someone to be consulted, anyone engaged in caring for the person or interested in their welfare, any person with lasting power of attorney or a deputy appointed by a court.

The person at the centre of the authorisation should also be consulted and the Code of Practice recommends that all possible and appropriate means of communication should be tried. A best interests meeting may be required if there is a dispute or a decision is required concerning a long-term move or serious medical treatment. Section 4 (9) of the MCA confirms that if someone makes a decision which they reasonably believe is in the best interests of the person who lacks capacity they will have complied with the best interests’ principle set out in the Act.

In relation to an Independent Mental Capacity Advocate (IMCA) for Mr Mendelson, under the MCA an IMCA must be instructed and consulted for people lacking capacity to consent to their care and treatment when an NHS organisation is proposing to provide serious medical treatment. The MCA Code of Practice7 provides guidance on when an IMCA should be instructed. I am advised that it is currently under review by the Ministry of Justice and consultation is planned. The revised Code will improve protections for the person at the centre of the authorisation and ensure that their wishes and feelings are considered.

Turning to the wider aspects of your report, you may wish to note that in 2015, the Government established the Learning Disabilities Mortality Review (LeDeR) Programme.

4 https://www.gov.uk/government/speeches/provisional-local-government-finance-settlement-2020-to-2021-statement

5 This projection includes a small proportion of base tax rate growth.

6 http://www.legislation.gov.uk/ukpga/2005/9/section/4

7 https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

The Programme systematically reviews the deaths of all people with a learning disability, aged four years and above, that are notified to it. The Programme enables a detailed picture to be built of key improvements that are needed both locally and at a national level, to reduce the inequality in life expectancy between people with a learning disability, and those without.

I am advised by NHS England and NHS Improvement that Mr Mendelson’s death is currently being reviewed under the LeDeR process and I expect the local NHS to reflect on the findings of the review and take necessary action to address any failings in the care provided locally for people with a learning disability.

One of the commonly reported learning points in local LeDeR reviews is the need for learning disability awareness training for staff in health and social care settings.

On 5 November 2019, we published our response to the consultation on mandatory learning disability and autism training for health and care staff8. We are now working with Health Education England and Skills for Care to develop and test, during 2020/2021, a standardised training package, backed by £1.4million investment. Work is already underway to develop the training and testing will take place in a variety of health and social care settings to help shape how it will be rolled out and delivered in future. Our plans to introduce mandatory training will go a long way to ensuring more people receive the safe, compassionate and informed care they have a right to expect.

Finally, I have asked officials to bring your report to the attention of the National Director for Learning Disabilities, Ray James, who is leading work nationally to improve services for people with learning disabilities and/or autism.

I hope this response is helpful. Thank you for bringing these concerns to my attention.

HELEN WHATELY

8 https://www.gov.uk/government/consultations/learning-disability-and-autism-training-for-health-and-care-staff

Report sections

Investigation and inquest

On 24th 2019 commenced an investigation into the death of Lewis Victor Mendelson: The investigation concluded on the 4t November 2019 and the conclusion was one of Narrative: Died from the recognised complications of cerebral palsy (the precise cause of which could not be established): The medical cause of death was 1a) Aspiration pneumonia on a background of an episode of vomiting; 1b) Cerebral Palsy CIRCUMSTANCES OF THE DEATH Lewis Victor Mendelson had profound learning disabilities and physical disabilities. He was placed by the Local Authority in a community care facility. He was not subject to a DoLS. His last statutory 12 month review took place over 2 years before his death. He had no allocated Local Authority social worker: On the night of 8th May 2019 he vomited. He was taken to hospital some hours later. Repeated attempts were made to insert a nasogastric tube causing him significant distress. He was placed on end of life care with no formal best interests meeting or Independent Mental Capacity Advocate (IMCA) in place. He returned to his home address with end of life care: He appeared to begin to improve and antibiotics were restarted: He subsequently deteriorated again and died on 16th May 2019 at his home address, 10 Firs Grove, Gatley. CORONER'S CONCERNS During the course of the inquest the evidence revealed matters giving rise to May _

concern. In my opinion there is a risk that future deaths will occur unless action is taken. In the circumstances it is my statutory duty to report to you. The MATTERS OF CONCERN are as follows. The inquest was told that he met the criteria for a DoLS but due to backlogs within the Local Authority one was not in place at the time of his death: He also met the criteria for an annual review of his care this had not taken place for over 2 years due to staff shortages. There was no designated Social worker overseeing his care due to staffing shortages; He was treated in hospital with no IMCA in place or foral best interests meeting taking place. As a result it was unclear if the treating physicians understood the complexity of his learning disability and communication issues that flowed from his disability: The inquest heard that repeated attempts were made to insert a nasogastric tube causing him great distress and where there was limited evidence that it would be beneficial;
3. He was placed on End of Life Care with no best interests meeting taking place or discussion with an IMCA or assessment of what should happen if he rallied as he did. ACTION SHOULD BE TAKEN In my opinion action should be taken to prevent future deaths and believe you have the power to take such action. YOUR RESPONSE You are under a duty to respond to this report within 56 days of the date of this report, namely by 11th February 2020. I, the coroner, may extend the period. Your response must contain details of action taken or proposed to be taken, setting out the timetable for action. Otherwise you must explain why no action is proposed: COPIES and PUBLICATION have sent a copy of my report to the Chief Coroner and to the following Interested Persons namely on behalf of the care facility, who may find it useful or of interest am also under a duty to send the Chief Coroner a copy of your response The Chief Coroner may publish either or both in a complete or redacted or summary form: He may send a copy of this report to any person who he believes may find it useful or of interest: You may make representations to me; the coroner, at the time of your response, about the release or the publication of your response by the Chief Coroner: Alison Mutch OBE HM Senior Coroner 17.12.2019

Circumstances of the death

Lewis Victor Mendelson had profound learning disabilities and physical disabilities. He was placed by the Local Authority in a community care facility. He was not subject to a DoLS. His last statutory 12 month review took place over 2 years before his death. He had no allocated Local Authority social worker: On the night of 8th May 2019 he vomited. He was taken to hospital some hours later. Repeated attempts were made to insert a nasogastric tube causing him significant distress. He was placed on end of life care with no formal best interests meeting or Independent Mental Capacity Advocate (IMCA) in place. He returned to his home address with end of life care: He appeared to begin to improve and antibiotics were restarted: He subsequently deteriorated again and died on 16th May 2019 at his home address, 10 Firs Grove, Gatley.

Action should be taken

In my opinion action should be taken to prevent future deaths and believe you have the power to take such action.

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