Summary: There was fault in the medication recording of the Agency, its communication with the family and the provision of care on one occasion. The Agency has agreed to apologise to Mr and Mrs D and pay them £100.

The complaint

1. Mr B represents his father, Mr D, in the complaint. Durham Tees Care is an agency which provides care at home.
2. Mr B complains about the care provided, the record keeping, listening into telephone conversations and the carers’ reliance on the emergency services.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)

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How I considered this complaint

4. I have discussed the complaint with Mr B. I have considered the documents he and the Agency have sent, the relevant guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

5. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance how to meet the fundamental standards.
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• The care and treatment must be provided in a safe way for service users. This includes the proper and safe management of medication (regulation 12).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The care provider must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17).
• In relation to medication records (regulation 17), the CQC says home care workers should make a record each time they provide medication. The records must be legible, signed by the staff, clear and accurate, have the correct time and be completed as soon as possible after the person has taken medicine. NICE has additional information which says records should include the name, formulation and strength of the medicine, how often it should be taken, stop or review dates, name of GP and other information.

What happened

7. Mr and Mrs D are an elderly couple who needed some additional support at home.

Care plan

8. The care plan was as follows.
• Four calls a day, at 9:00 am, 12:00 noon, 5:00 pm and 9:15 pm. All the calls were for 45 minutes except the lunch time call which was 30 minutes.
• The care workers had to provide Mr and Mrs D with breakfast, lunch and an evening meal. In addition, they had to change Mr D’s catheter bag at each call and offer him to use the commode. They had to provide Mr D with personal care (assistance in washing and getting dressed) in the morning and the evening. Care workers also had to prompt Mr D to get up and sit in his chair in the morning.
• Care workers should vacuum clean on Tuesday, Friday and Sunday ‘if time permits' and do the washing on Monday, Wednesday and Saturday, depending on whether the washing machine was full.

Agreement

9. Mr and Mrs D’s daughter and her husband signed an agreement with the Agency. The terms were as follows.
• The care worker will keep a daily written record of ‘the care you receive, any assistance with your medication and any other significant medication.’
• The service user was required to sign the care workers’ timesheets on each occasion that the service was provided in order to verify the accuracy.

What happened

10. The agreement started on 21 June 2021 and the Agency ended the service on 12 July 2021.

Incidents during the first week

11. During the first week, there were five incidents when the care workers rang the Rapid Response (type of emergency service) team.
• 21 June. Mr D found on the floor after a fall.
• 23 and 26 June. Blood or mucus in the catheter bag.
• 24 and 27 June. Mr D had pulled out the catheter, possibly injuring himself.
12. The family corresponded with the Agency via Whatsapp. They complained about the poor records which consisted, according to the family, of scraps of paper with notes on them. The family said other professionals such as Rapid Response had commented on the poor record keeping as it was difficult to establish what the care workers had done.
13. On 26 June 2021 Mr D’s son-in-law wrote on Whatsapp asking that all reports and paperwork should be dated. Rapid Response had attended and said they were unsure what order the advice notes were in. He said the folder was downstairs.
14. On the same day, Mr B wrote in the written notes asking the care workers to put all communication ‘in this log’ and not in loose notes and to keep the log on the dining room table. There was also a message on Whatsapp from Mr B saying that he had written in the log and to only use the folder for the communication notes.
15. The family complained about the poor state of the house on 28 June 2021 and sent photos which showed the commode filled with soiled tissues, the commode missing from the chair, the bed was unmade and the filled night catheter bag. The night catheter bag had been left on the stand and had not been emptied.The room looked in disarray with a drawer under the bed left open. The photos were timestamped between 1:49 pm to 1:51 pm.

Meeting – 29 June 2021

16. The Agency held a meeting with the family on 29 June 2021. The Agency said it was not appropriate for the family to raise complaints about individual workers on the Whatsapp group. This had caused staff to become upset and made things more difficult.
17. The Agency said the family was not proactive in the evenings and expected staff to stay and deal with the paramedics which was not their role.
18. The family were described as ‘scathing’ about the staff and blamed them for the mess they found between calls. The Agency said that their staff were only there for four times a day so a lot could happen in between calls.
19. The Agency said it was going to give notice as ‘we thought things were unattainable as to what we needed to do' but the family insisted that they continued with the service and the Agency agreed to do so.

Notice – 7 July 2021

20. The family gave notice by email on 7 July 2021 to take effect on 18 July 2021.

Fall – 11 July 2021

21. The care workers found Mr D on the floor when they arrived and he said he had pain in his back. An ambulance was called and Mr D was taken to hospital. The family contacted the Agency and asked them not to attend on the next day as Mr D was in hospital.
22. The family sent a photo of a soiled chair left by the care workers on the day.
23. The Agency terminated the service on the following day, 12 July 2021. Mr D was in hospital for 10 days.

Daily records

24. Mr B sent me a copy of the handwritten records. The written records were poor. There were records for seven visits. The records showed a time of arrival but did not say when the care workers left. There was little detail of the care provided, the meals cooked or what support the care workers provided.
25. The Agency sent me a copy of its electronic records. The electronic records were more comprehensive and there was a record for most dates. This set out what care the care worker had provided, what Mr and Mrs D had eaten and other relevant issues. The record said when the care worker arrived, However, the records rarely said when the care worker had left although I appreciate this may be a problem with the printout that was sent and that the Agency may have access to more detail.
26. In terms of medication, there were no medication administration records. The written records said that paracetamol had been administered on one occasion and that antibiotics had been administered on two occasions.
27. The electronic records said paracetamol had been administered on two occasions and antibiotics on five occasions.

The complaint

28. I have summarised Mr B’s complaint as follows.
• The quality of the record keeping was ‘appalling’. The grammar and spelling was poor. Notes were left on scraps of paper around the house without dates and times.
• Food and medication were not recorded.
• The standard of care provided was poor. The care workers did not provide the service they should have done. There was a lack of housework. There were many times when the commode was not emptied, the catheter bag was not emptied and equipment was left in an unsafe manner.
• The carers were reluctant to encourage Mr D to leave his bed.
• The care workers called Rapid Response without reason and raised concerns about medical issues such as rashes and lumps which were not true.
• The carers answered the phone when the family called and put the phone on speaker so they could listen into the conversation.
29. The Agency responded on 26 July 2021 and said:
• ‘We have looked at the record keeping and while we would agree that it was not of a high standard, we are satisfied that all points are conveyed, we as a company do not discriminate against anyone who has a disability (dyslexia).’ The Agency said it had retrained the care worker who wrote the notes and would continue to support her to avoid miscommunication.
• There was no prescribed medication initially, only ‘PRN’ (medication to be administered when needed) for constipation and paracetamol for pain relief.
• ‘Once antibiotics were given by Rapid Response the carers administered this twice daily and were instructed to write this in the notes. After looking through the notes, we do agree that the antibiotic wasn’t recorded consistently. Carers should have been doing this twice daily. We have spoken to the carers involved and have introduced stricter protocols and checks to make sure this is recorded correctly and also electronic system now has medication controls in place.’
• The care provided was of a good standard. The care workers were not required to do any housework except for vacuum cleaning if they had time. There had been one occasion when a family member said that a soiled tissue had been left in the commode but the care workers said that they had emptied the commode pans and left them to dry.
• The carers encouraged Mr D to get out of bed, but he often chose not to leave his bed and the carers could not force him.
• There was one occasion when the phone had been put on speaker phone. The care workers said that they could sometimes overhear telephone conversations as the conversations were loud, even if they were not on speaker phone.

Comments on the draft decision

Administration of medication

30. The Agency made no comments on the administration of the medication, in its initial response to the Ombudsman on 22 December 2021. However, the Agency said, in response to the draft decision dated 25 February 2022, that it had agreed with the family that the family would administer the antibiotics as the antibiotics were not supplied in a Dossett box by a pharmacy. I asked Mr B whether this was correct and he said that there was no such agreement with the family.
31. The Agency said it agreed with the Ombudsman’s decision that there should have been a MAR chart to record the over-the-counter medication. The Agency said it had put in place a policy, following the Ombudsman’s draft decision that it would always record medication on a MAR chart, regardless of the type of medication and how it was administered. It was using a paper MAR chart but was waiting for its software supplier to set up an electronic MAR chart.

Record keeping

32. I asked the Agency why it did not mention the existence of the electronic records earlier to the family. The Agency did not raise this until it sent its response to the Ombudsman dated 25 February 2022. The Agency said the complaint related to the written records, so it responded to this complaint. The Agency also said that Mr and Mrs D’s daughter and husband should have had access to the written records via a portal but said it could not be certain. Mr B said the family did not know about the electronic record keeping.

Analysis

Record keeping

33. The written notes and record keeping were of a poor standard. I agree with the Agency that the electronic record keeping was of a better standard than the written records.
34. The Agency said that some of the family had access to the electronic record keeping although the family said they did not receive those records. The records showed that the family relied upon the written notes and the Whatsapp, and raised concerns about the record keeping.
35. In my view, if it was the Agency’s position that it was relying on the electronic records and not the written records, then it would have been helpful if it had made that clearer at the time as there was no reference to these records when the family raised the concerns about the record keeping.

Medication recording

36. There was no proper recording of the medication administration and this was fault.
37. I am concerned about the Agency’s statement that, as some medication was administered ‘when needed’, this did not need to be recorded. I would think it would be even more important to record medication, such as constipation or pain medication, that is being administered when the person needed it, to avoid administering too much or not enough medication.
38. I note that the Agency agreed with the draft decision that a MAR chart should have been filled in for medication that was administered ‘when needed’ and has changed its policy since then.
39. Also, once the antibiotics were prescribed, these should have been properly recorded with all the details as set out in paragraph 5. It is not a requirement to use a medication administration record (MAR) chart, but most agencies would use a MAR chart or something similar.
40. It was not sufficient, as the Agency said, to make a reference to the antibiotics in the daily notes. That would not provide the detail that was required for the administration and recording of medication.
41. The Agency said, in its response in February 2022 that it had agreed with the family that it would not be involved in administering the antibiotics, but Mr B denies there was such an agreement. I can make a decision on the balance of probabilities.
42. I note that, in the previous complaint response dated 21 July 2021, the Agency admitted that the care workers were administering the antibiotics twice daily and that they had been instructed to write this in the notes. I note that the administration of antibiotics was noted some days, but not others. I also note that, as a result of the complaint, the manager said in July 2021 that the Agency had changed its practice to ensure the issue did not arise again.
43. Therefore, I remain of the view that the care workers were involved in administering the antibiotics and there were concerns regarding the record keeping.

Raising medical concerns

44. I do not uphold the complaint that the Agency called the Rapid Response service unnecessarily. It appears there were concerns relating to Mr D’s falls, urine and mucus in his catheter and Mr D suffering an injury because he had pulled his catheter out. It would be difficult for the Ombudsman to criticise a care worker for erring on the side of the caution when confronted with medical concerns.

Listening in to conversations

45. The Agency says it only put the telephone on loudspeaker once, but the care workers could sometimes hear telephone conversations because they were loud. It is difficult for me to comment. Service users are entitled to privacy but it would not be unusual for the care workers to overhear conversations when working in close proximity. I cannot say, on the balance of probabilities, that there was fault.

Poor care

46. It is difficult for me to comment on the care provided as most of the evidence is verbal. The family said there were lots of occasions where the care provided was poor and the home was left in a poor state, occasions where the care workers did the minimum and ignored work that needed to be done. The Agency denied any wrong doing and, when there was evidence of the poor state of the house, always said that this was caused Mr and Mrs D messing up the house in between calls.
47. I have seen the photographs that the family has sent. I note the time stamp on the photographs on 28 June 2021 which suggests the photos were taken soon after the lunch time call. The Agency said that Mr D could have used the commode in that time and I accept that this is true. But that does not explain the other issues raised by the family such as the night catheter bag still not being empty, the bed being unmade, the room in disarray and so on.
48. Therefore, on the balance of probabilities, I find that, at least on one occasion, the care provided was not of a good enough standard.
49. In terms of the carers encouraging Mr D to leave his bed, I find no fault in that respect. The records showed that Mr D left his bed quite frequently and there were other times when he declined to leave his bed as he was feeling unwell.

Injustice and remedy

50. I have considered the injustice that Mr and Mrs D and their family suffered as a result of the fault I have found.
51. The poor communication in terms of the record keeping meant that it was not clear whether the Agency was providing a proper service and there was no detail of what had been provided which made it more difficult to manage Mr D’s care package. This increased the family’s anxiety about the Agency.
52. The failure of the medication recording put Mr D at risk of being given the incorrect medication.
53. I asked Mr B what outcome he wanted from bringing his complaint to the Ombudsman. He said he wanted to make sure that no other family suffered what his family suffered.
54. I note that, in terms of the record keeping, the care worker has been provided with further training. In relation to the medication recording, I note the Agency has remedied this fault by changing its policy so that it now uses a MAR chart at all times. I will therefore not recommend a service improvement in that respect.

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Agreed action

55. The Agency has agreed to take the following actions within one month of the final decision. It will:
• apologise to Mr and Mrs D for the fault;
• pay Mr and Mrs D £100 as a symbolic amount to reflect any distress they suffered because of the fault; and

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Final decision

56. I have completed my investigation and have found that the Agency’s actions have caused an injustice. The Agency has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman