Summary: Miss X complained the Council commissioned care provider failed to seek medical assistance for her mother and provided her with poor care. The Council was at fault for the care provider’s poor record keeping, failure to seek medical advice after it said it would and for a missed visit. The Council has agreed to apologise to Miss X and pay her £300 to acknowledge the distress these faults caused. There was no fault in the way the Council investigated the concerns under its safeguarding procedures and it has taken appropriate action to prevent a repeat of the faults by the care provider.

The complaint

1. Miss X complained the Council commissioned care provider, Embrace, failed to seek medical assistance for her late mother Ms Y when she was unwell. Miss X said this led to Ms Y developing sepsis and subsequent death. Miss X also complained the care provider failed to ensure medication was consistently administered, follow COVD hygiene rules and ensure Ms Y received adequate nutrition. Miss X said this caused her significant distress.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about councils and certain other bodies. 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)
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. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share the final decision on this complaint with CQC.

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How I considered this complaint

6. I have considered the information provided by Miss X and have spoken to her about the complaint on the telephone.
7. I have considered the information provided by the Council in response to my enquiries including the relevant safeguarding papers and care provider records and the relevant law and guidance.
8. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Relevant law and guidance

The role of CQC

9. CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of the fundamental standards and prosecute offences.
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. This includes:
• Medicines must be supplied in sufficient quantities, managed safely and administered appropriately to make sure people are safe (regulation 12).
• Providers must make sure that people who use their services have adequate nutrition and hydration to aid good health. People must be provided with appropriate food and drink and any support they may need to achieve adequate nutrition (regulation 14).
• Providers must securely maintain accurate, complete and detailed records about each person using their service (regulation 17).

Safeguarding

11. A council must make enquiries 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 arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse.

What happened

12. Ms Y lived at home. She had a number of health conditions including chronic obstructive pulmonary disorder and osteoporosis. She also had problems swallowing and took several different medications for her conditions. Ms Y received visits twice a day from the care provider. This comprised a 20 minute morning call to support with medication administration and to offer support with meals and drinks and a 15 minute call in the evening to support with medication and encourage food and fluids. Miss X provided support to her mother at other times of the day.
13. The following is a summary of the main events.
14. Miss X was going away for a few days in January 2021 so she asked the care provider to arrange an additional tea time visit for Ms Y to support her with meals.
15. On day one, care workers completed the three visits and noted no concerns. In the morning visit they noted Ms Y had already had her breakfast, she refused a hot meal at the teatime call but agreed to have a sandwich. There was no mention of food at the evening call.
16. At the morning visit on day two the care worker noted no concerns. They assisted with Ms Y’s medication. There was no reference to any food being offered. Care worker 1 visited at around 6pm on the second day. They recorded ‘on arrival she was with her friend, she’s not very well, she’s having stomach pain, 2 days not opening her bowel. Gave medication. Had chat, left well’. There was no record of a third call that day.
17. On day three, care worker 2 completed the morning call. They noted Ms Y ‘said not very well, feel dizzy and said had her breakfast, and asked if she had open bowel and said yes yesterday night. Assisted in medication given and taken, no need anything else, said will have rest, had chat, wash dishes, left her sat in lounge’.
18. Miss X called her mother shortly after this visit and was concerned Ms Y did not sound well. She telephoned Ms Y’s neighbour and asked her to visit. When the neighbour spoke to Miss X they said they were with Ms Y when care worker 1 visited the previous day and the care worker had said they would call the District Nurse. This did not happen. The neighbour visited Ms Y and then called Miss X’s sibling who arrived shortly afterwards and called 111.
19. Care worker 2 arrived for the tea time call when the paramedics were with Ms Y. They noted Ms Y was being taken to hospital. Ms Y died in hospital four days later. Ms Y’s death was not referred to the coroner.

Safeguarding investigation

20. In late February 2022 Miss X complained to the Council regarding the care provided to Ms Y. She also complained the care provider routinely made medication errors, failed to support Mrs Y with meals, failed to maintain adequate hygiene and failed to accurately record this. The Council responded and advised it would address her complaint as a safeguarding enquiry due to the seriousness of the concerns raised and to ensure it managed any risks posed to other vulnerable adults.
21. The Council allocated a social worker to investigate. The social worker investigated Miss X’s concerns. They contacted the hospital, the Council’s contracts team and CQC. They met with Miss X and spoke to Ms Y’s neighbour, the manager of the care provider and care workers, including a care worker that had left the company. They requested documentation from the care provider.
22. In July 2022 Miss X contacted the Council raising concerns about how the safeguarding investigation was handled.
23. The social worker completed the safeguarding report and closed the safeguarding in August 2022.
24. In August 2022 Miss X met with a senior officer to discuss her concerns about the care provider and her belief that had medical assistance been called sooner Ms Y may not have died.
25. The Council sent Miss X, the Council’s contracts team and the care provider a copy of the safeguarding report in September 2022. Following this, in October 2022, Council officers met with Miss X and made some changes to the report. In summary the investigation found:

Medication

26. The medication administration records (MAR) were not properly completed with 19 omissions in a six month period. These indicated either medication was not administered or the care workers failed to sign the charts.
27. The MAR charts were produced by Miss X when the care provider was responsible for administering medication. It should have asked the pharmacy to produce these.
28. There were instances where Ms Y misrepresented her compliance around medication (i.e. would pretend to swallow tablets and later spit them out) which indicted a lapse in vigilance from care staff.
29. The length of calls may have been too short given the number of medications Ms Y took.

Care visits

30. There was no entry for the tea time call on the day before Ms Y’s hospital admission (day two).

PPE and hygiene

31. The Council could not investigate further her concerns about hygiene and use of PPE without specific names and dates. The Council contracts team had visited the care provider and was satisfied PPE and hygiene was covered in training. PPE was being discussed and reinforced at team meetings and staff were completing additional training.

Nutrition

32. The daily records showed Ms Y would ordinarily prepare her own breakfast or report she had already eaten. She would typically eat her main meal. Ms Y may have misinformed staff she had eaten breakfast when Miss X was away and had only eaten half a sandwich in three days. Ms Y had capacity and elected to misrepresent her situation. However there was a lack of professional curiosity and a lack of reference to nutritional tasks in the records on the second day Miss X was away.

Response to health needs

33. The Council concluded there was a missed opportunity to respond appropriately to Ms Y’s ill health on day two although it was unclear care worker 1 would have been expected to call health professionals given there was no evidence they, Ms Y or her neighbour considered the abdominal pain to be acute. However care worker 1 should not have stated they would notify health professionals if they had no intention of doing so. The Council considered care worker 1’s practice was indicative of incompetence requiring further training and oversight.
34. On day three, the Council concluded it was highly likely Ms Y was unwell during care worker 2’s call although it was unknown to what extent she presented as unwell to the care worker or communicated her ill health. There was no evidence Ms Y complained of abdominal pain or any health concerns other than vertigo during the morning call. In the light of this, the decision to administer Ms Y’s medication and monitor her at the next call was reasonable.
35. The Council’s contracts team were working with the care provider and CQC were due to review the care provider.

Safeguarding recommendations

36. The safeguarding investigation recommended:
• The care provider ensure staff were clear of its policy and procedure for responding to a client’s ill-health, specifically around when to notify management and health professionals of concerns.
• Care records typically lacked detail. A clearer record of health concerns and reports of ill health would better inform care workers when starting calls as well as professionals reviewing care records.
• The care provider should ensure pharmacies provide MAR charts with stickers detailing the prescribed medication. Where this was not possible the care provider should take responsibility for filling out medication records.
• The care provider should speak to other recently visiting care workers when considering what action to take when it received reports of ill health.

Miss X’s complaint

37. Miss X raised further issues about what happened and the safeguarding report. A senior officer wrote to Miss X in November 2022 to address these issues as a complaint.
38. In their response, the officer accepted the care worker acted inappropriately by claiming they would call the District Nurse then not doing so. They noted they could not comment on whether appropriate medical assistance at that point would have made a substantial difference to the progress of Ms Y’s medical condition as they were not qualified to comment.
39. In terms of the general quality of care, the senior officer said the care provider considered the time allowed to undertake Ms Y’s care was not sufficient and they considered there would have been merit in a more robust social work involvement in the situation.
40. They noted Ms Y had capacity which was important in relation to Ms Y’s compliance with medication but acknowledged there was a lack of vigilance on the care provider’s part.
41. In terms of medication they said they were concerned the care provider had allowed Miss X to prepare the MAR charts. They advised the Council’s contracts team was working closely with CQC and the care provider in terms of its performance to monitor and improve its compliance.
42. Miss X had also raised concerns over whether a particular care worker was still employed by the care provider when it had previously advised her they were not. The Council explained the checks it had undertaken and that it was satisfied the care worker no longer worked for the care provider.
43. The officer expressed their sympathy for Miss X’s loss and apologised for any ways the Council had contributed to the trauma and stress involved. Miss X remained unhappy and complained to us.

Response to our enquiries

44. We asked the Council for evidence the care provider had completed the recommendations from the safeguarding enquiry. It provided evidence of:
• Two meetings held to remind staff of the policies and procedures regarding clients’ health needs.
• The use of an electronic call monitoring system whereby care workers can document notes and send them straight to the head office for review.
• A new ‘emergency client information’ document completed by the care provider for care staff to refer to at the start of each call, highlighting medical conditions and known allergies which could also be used as an ‘at a glance’ reference tool by emergency services.
• Action taken to address medication administration concerns. The Council has a contract with a number of pharmacies to provide pre-filled MAR charts to those who receive home care and support with medication. The Council has required the care provider to use this service which it has done.
• Action taken to address concerns about particular staff.

Findings

45. When Miss X first raised concerns with the Council it acted appropriately by treating her concerns as a safeguarding enquiry. The Council properly considered Miss X’s concerns. It also considered wider issues of care quality which would not normally be considered as part of a safeguarding enquiry. There were no significant gaps in the time taken to complete the safeguarding enquiry. The investigating officer set out their reasoning based on the evidence and made a number of recommendations to the care provider to improve its service. There was no fault in the way the Council carried out the safeguarding investigation.
46. The safeguarding investigation identified a number of issues which we would describe as fault. The care provider was at fault for:
• Failing to properly complete MAR charts and not properly overseeing Ms Y’s medication regime.
• A missed care visit.
• A staff member suggesting they would seek medical advice and not doing so.
• A lack of professional curiosity regarding nutrition and the failure to record nutritional intake.
• A lack of detail in records.
47. The failure to keep adequate records, oversee Ms Y’s nutritional intake and lack of medication oversight are not in line with the CQC fundamental standards of care.
48. When Miss X remained unhappy following the completion of the safeguarding process the Council considered her concerns under its complaints process. This was appropriate. It acknowledged the identified faults in its complaint response to Miss X. It also recognised that it was likely the call times were too short to properly administer and oversee Ms Y’s medication and there would have been merit on a more robust social work involvement.
49. Ms Y has died so any injustice caused to her by the faults identified cannot be remedied. Ms Y had a number of health conditions, had capacity to reach her own decisions and the evidence shows she was reluctant to seek medical assistance. The records give no indication Ms Y was ill until the evening call on day two when Miss X was away. Given the short timescale over which Ms Y’s condition deteriorated I cannot say, even on the balance of probabilities, what would have happened if the care provider had acted differently.
50. However, these faults have caused Miss X distress and she has been left with a sense of uncertainty over what would have happened had medical attention been sought sooner. The injustice of distress cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault. The Ombudsman usually pays between £100 and £300 to acknowledge the distress caused. I consider a payment of £300 would be appropriate in this case.
51. When we find faults causing injustice we also consider whether service improvements are required to minimise the opportunity for any repeated failures by the organisation. The Council has provided evidence to demonstrate that its contracts team has worked with the care provider, and the CQC who are the statutory regulator of care services have also been involved. I have seen evidence to show the care provider has complied with the recommendations made by the Council. The CQC has also carried out an inspection of the care provider since the concerns were raised and rated it as good. I am satisfied suitable action has been taken to ensure the necessary improvements were taken by the care provider to prevent a repeat of the faults identified.

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Agreed action

52. 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, where I have found fault with the actions of the care provider, I have made recommendations to the Council.
53. Within four weeks of the final decision, the Council has agreed to send Miss X a meaningful apology setting out the actions taken to prevent a recurrence of the faults identified and to pay her £300 to acknowledge the distress and uncertainty caused by the faults identified.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation. There was evidence of fault by the care provider, acting on behalf of the Council, which caused injustice to Miss X which the Council has agreed to remedy. I am satisfied the care provider has made suitable improvements to its service.

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Investigator's decision on behalf of the Ombudsman