Summary: There was fault by the Council’s care provider, Akari Care. It failed to keep complete and contemporaneous records. It did not establish what had happened at the first stage of its complaint response. It did not provide care to Mr X when he became distressed. This caused distress to Mr X and his friend who represents him. The Council has agreed to remedy the injustice caused.

The complaint

1. Mrs B complains on behalf of Mr X. She says that the Care Provider, Akari Care, failed to give adequate care to Mr X. She says a nurse failed to help, despite him being in distress and having difficulty breathing.
2. Mrs B says this caused her and Mr X distress.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)
5. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
7. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account all comments received before issuing this final decision.

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What I found

The law and guidance

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
11. The fundamental standards include that the person must not be given unsafe care or put at risk of harm that could be avoided. The care provider must assess the risks to the person’s health and safety during care and treatment and make sure their staff have the qualifications, competence, skills and experience to keep them safe.
12. The fundamental standards guidance also says that the provider should maintain an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to them and of the decisions taken in relation to the care and treatment provided.

What happened

13. Mr X lived in a residential care home. Mrs B is his friend. Mr X had a terminal illness. Mr X video-called Mrs B because he thought he was not getting the right care in the home. He was distressed. During the call, Mr X pressed his alarm to call staff three times, and care staff came to his room. Each time, Mr X said he was very worried about his symptoms and wanted to see the nurse.
14. The nurse was in a meeting and said she would come to see him once she had finished. The daily care record gives a nursing summary. It says that the nurse visited Mr X and notes Mrs B was worried about him. She assessed him including a clinical measurement, and she reassured Mrs B and Mr X. She gave Mr X some medication and moved him to a quieter room. The summary says that Mr X was calmer once he had slept, and the nurse would discuss his condition with the doctor the next day.
15. Akari Care consulted the doctor, who arranged treatment and said that staff should monitor Mr X. The carers informed Mrs B of the doctor’s advice. Mr X deteriorated over the following days. He was admitted to hospital and sadly died.
16. Mrs B complained to the Akari Care that it had not given Mr X adequate care when he was distressed and it could not meet end of life care needs. Akari Care responded. It said that carers should have interrupted the meeting so that the nurse could check on Mr X. It had addressed this with the care staff. However, on that day the nurse had already spent time with Mr X and supporting him with his symptoms, and care staff had regularly checked on him throughout the day. The nurse had noted in the diary to discuss this with the doctor the following day and she had recorded the clinical observations.
17. Mrs B asked Akari Care to consider her complaint at the second stage of its complaints procedure. Akari Care interviewed the nurse and care staff who had been on duty that day. The nurse had been recruited from an agency. The care staff said that they had interrupted the nurse’s meeting to inform her that Mr X was distressed but she had asked them to wait until her meeting had finished. The nurse said care staff had not told her Mr X needed help.
18. Akari Care accepted that the nurse failed in her duty of care to Mr X and it had passed this on to the employment agency who will take this up with the nurse. Akari Care would not use this nurse again. Akari Care apologised to Mrs B for the distress caused to her.

Analysis

19. I have looked at the daily care records for Mr X and notes of the interviews with the staff. These add the detail that another relative alerted the manager at the time, and the manager instructed the nurse to come out of her meeting and go to Mr X immediately which she did. The nurse told the manager at the time that she had seen Mr X earlier in the day. It is not evident in the care records that the nurse saw or assessed Mr X earlier that day. This shortcoming in recordkeeping is fault.
20. The Care Provider first told Mrs B that the care staff had not alerted the nurse and should have, and then that the care staff had alerted the nurse but that she had not left the meeting to assess Mr X. Clearly different information might arise as a complaint investigation progresses. However, the basic facts of what happened should have been established from the start. The Care Provider did not investigate the complaint properly in the first instance.
21. In any case, the Provider has acknowledged that it failed in its duty of care to Mr X. It has raised this with the employment agency and has ensured it does not employ that nurse. The Provider also apologised to Mrs B for the distress this caused her.
22. These shortcomings caused distress to Mr X when he was very worried about his symptoms, and to Mrs B who was trying to get him the attention he needed.

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Agreed action

23. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
24. Within one month of the date of this decision, the Council will:
• Ensure that care staff including agency staff are reminded to keep up to date contemporaneous records; and
• Apologise to Mrs B for the distress caused to her by the Care Provider it commissioned.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. There was fault by the Council causing injustice to Mr X and Mrs B.
27. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman