Summary: The care provider considered the use of bedrails but did not take other appropriate action to manage the falls risks for Mrs X despite her vulnerability. The care provider agrees to apologise to her family, take action to review its procedures in respect of falls management, and offer the sum of £500 in recognition of the distress caused to her family.

The complaint

1. Mrs A (as I shall call her) complains on behalf of her late aunt Mrs X, that the care provider failed to take seriously Mrs X’s falls risk and that its failure to consider bedrails put her at risk.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

4. I considered the information provide by Mrs A and the care provider, as well as information from the local council. I spoke to Mrs A. Both Mrs A and the care provider had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. 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.
7. Regulation 12 says that care providers must assess the risks to the health and safety of a service user of providing treatment and do “all that is reasonably practicable” to mitigate any such risks.
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
9. There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

10. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
11. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
12. The Medicines and Healthcare Products Regulatory Authority (MRHA) has produced guidance on managing the safe use of bedrails. It says, “Bed rails are used extensively in acute, community and home care environments to reduce the risk of bed occupants falling out of bed and injuring themselves. However, MHRA continues to receive reports of adverse incidents involving these devices. The most serious of these have led to injury and death by asphyxiation after entrapment of the head, neck or chest. Most incidents occurred in community care settings, particularly in nursing homes…..Clinicians should carefully consider the benefits and risks of bed rails before they are used for an individual bed user.”

What happened

13. Mrs X was admitted to hospital in August 2017 after several falls at her home, where she had been receiving a care package arranged by the council. Mrs X was briefly discharged home before she was admitted to a psychiatric unit.
14. The council’s records show the hospital social worker spoke to Mrs X’s family on 17 October about a nursing home placement. Mrs X’s family said that Mrs X would fund her own care as she had savings above the threshold amount (as well as a house to sell). Her stepson said that Mrs A (who held joint power of attorney with him for health, welfare and finances) had already looked at three nursing homes.
15. The hospital social worker contacted the three named nursing homes on 18 October. He found that two of them had no vacancies, and the third had decided not to offer a bed to Mrs X. The social worker, at the family’s request, contacted another nearby nursing home (Stretton Hall) which could meet Mrs X’s needs.
16. Mrs A emailed the social worker with concerns about the long-term fees at the proposed nursing home. She also asked about the possibility of moving Mrs X closer to her own home in Scotland. The social worker replied that he had approached Stretton Hall after he was “tasked” with finding a suitable placement close to Mrs X’s friends. He said he had not been told of any possible problems with the financial viability of the placement. He said he had no idea about the possible costs of moving Mrs X to Scotland.
17. On 26 October Mrs A emailed the social worker to say she had paid the deposit for Stretton Hall and asked him to make arrangements for an immediate discharge there. Mrs X was discharged to Stretton Hall on 3 November.

The risk assessments

18. The care provider’s records contain a copy of the pre-admission assessment which the manager undertook on 20 October while Mrs X was still in hospital. The assessment noted Mrs X had a history of falls (and had one fall while in hospital).
19. After admission there was a further, more detailed falls risk assessment. The care provider’s assessment chart scores residents on a scale of which a score >13 is the highest level. Mrs X scored 28. The bedrails risk assessment said the provision of bedrails would place Mrs X at greater risk because she could move independently in bed and would be able to attempt to climb over them. The assessment said the provision of a low mattress had been considered. A safety mat to cushion any fall was not in place. The assessment noted ‘not able’ against the criterion: “alarm system to indicate if person attempts to move out of bed”.
20. The care provider’s records show that staff checked on Mrs X at least hourly during the daytime and at intervals during the night.

Falls and other incidents in the care home

21. On 12 November Mrs X was taken to hospital after she had been vomiting and was complaining of stomach pain. She returned to the home on 16 November. The care provider considered asking for her to be readmitted on 20 November but Mrs A said it was against Mrs X’s wishes to move again.
22. Mrs X suffered a fall on 24 November. The care notes read, ’05.50….(Mrs X) was found on the floor by the door-side. (Mrs X could not recall how she fell’.)
23. The care provider’s daily notes for 3 December read, “(Mrs X) was found with her feet out of bed by carer. She was re-orientated and assisted back into bed. Bedrails not appropriate for her”.
24. Mrs X fell on 6 December. The falls log for 03.30 reads, “I found (Mrs X) on the floor after I heard a bang from the side of Room XX. (Mrs X) has suffered a skin tear on her forehead…hoisted back into bed.” The carer carried out standard observations (pulse, oxygen levels, blood pressure) then noted that Mrs X was showing signs of a “seizure-like/cva” and called an ambulance.
25. Mrs X sadly died in hospital on 9 December.

The complaint

26. In February 2018 the co-executor of Mrs X’s estate complained to the care provider about the level of refund which had been made. He complained about the decision to admit Mrs X to the home in the first place. In particular he complained that the care provider had retained a 7-day charge after Mrs X’s death even though he said this practice had been found unfair by the Competitions and Markets Authority. He also complained about the level of care provided to Mrs X in the home. He said she had had to be admitted to hospital once during her stay and the care provider had wanted to take her back several days later. He said the call buzzer in her room was out of her reach. He said water was not within her reach in her room. He suggested a full refund of the charges made.
27. The care provider acknowledged the complaint and said it would investigate fully.
28. In March the care provider’s chief operating officer (OO) responded in full to the complaint. She said the staff at the home had not known of any misgivings about the admission. The admission agreement had been approved and signed by Mrs A. The pre-admission assessment and the assessment on arrival showed the home could meet Mrs X’s needs
29. The OO also said that Mrs X did not have the capacity to understand the use of the call bell system. She said the staff had undertaken regular direct observational checks of Mrs X. In respect of comments that Mrs X seemed frail and “desperately thirsty” on one visit, and that she was dehydrated on hospital admission in November, the OO said the hospital discharge notes only said Mrs X was admitted due to “general deterioration, reduced mobility, reduced urine output and reduced appetite and was treated for possible urinary tract infection”.
30. In respect of the fall from bed on 6 December, the OO said “the circumstance which preceded this incident was unwitnessed, therefore we have no way of knowing with any certainty the events prior to this. There are a number of medical events that may have occurred”. She said the response to finding Mrs X had been entirely appropriate and an ambulance summoned quickly.
31. The OO said the charge for 7 days following a resident’s death was part of the contractual agreement signed by Mrs A. She said it was included to allow a reasonable time for the collection of a deceased resident’s belongings. She added there was no provision for the refund of any days when Mrs X had been in hospital as the room had remained reserved for her during that time.
32. In July Mr and Mrs A wrote to the care provider. They said the provision of bedrails would have been the only way of preventing Mrs X from suffering an injury. They said such physical restraint might have been a last resort but was appropriate as no other measures could be taken.
33. In August the care provider’s solicitor wrote to Mrs A. He said the installation of bed rails had not been considered appropriate either by the care provider or by the NHS when Mrs X was an inpatient. He said there had been a robust assessment and it was concluded that the provision of bedrails was likely to result in itself in injury as Mrs X would still have sought to get out of bed.
34. In November Mrs A wrote again with her concerns about the way Mrs X had fallen out of bed. She said she had not yet decided how to proceed but would do so when the care provider replied.
35. Mrs A wrote again to the care provider several times but apart from an acknowledgement, the care provider did not write again until May 2019. The care provider’s solicitor then wrote that they continued to offer their condolences but had nothing more to add.
36. Mrs A complained to the Ombudsman. She said the care provider had not given her a proper response to her complaint and in particular had not addressed the lack of bedrails.

Analysis

37. There is no evidence the care provider failed properly to assess Mrs X at the pre-admission or when she arrived at the home. Her needs and risks were well documented. The use of bedrails was considered appropriately, and the care provider decided they were not appropriate. That decision was in line with the extant guidance.
38. However, there is no evidence to explain why either a safety mat or other provision (such as a low bed) were not put in place. Although they would not have prevented Mrs X from falling, they may have lessened any consequent injury.
39. There is no evidence that Mrs X sustained actual injury other than a skin tear from the fall itself on 6 December. The event which prompted her hospital admission was a seizure. Nevertheless, her family suffered the distress of not knowing whether other actions might have prevented a fall.
40. There is no reason for the care provider to refund the 7-day post-death charge, or any other charges incurred in the home.

Agreed action

41. Within one month of my final decision the care provider will review its procedures for measures to prevent injury from falls and let me know the results;
42. Within one month of my final decision, the care provider will apologise to Mrs A for the uncertainty around the fall and offer the sum of £500 in recognition of the distress which was caused.

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Final decision

43. The actions of the care provider caused injustice to Mrs A.

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Investigator's decision on behalf of the Ombudsman