Summary: the complainant says the Care Provider failed to properly consider the risk of a resident falling from her bed and to respond appropriately to the complaint and refund fees paid during her stay at the Care Provider’s Camplehaye Residential Care Home, Lamerton Way, Tavistock, Devon. The Care Provider says its contract with residents says it does not refund care fees, but it offered a remedy. The Ombudsman finds the Care Provider caused an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Care Provider failed to:
• Properly assess the risk of Mrs X’s late mother, Mrs Y, falling-out of her bed;
• Respond to the concerns Mrs X raised and to offer a professional response to her complaint.
2. Mrs X says the Care Provider gave good overall daily care for Mrs Y. However, the Care Provider she says caused distress to both Mrs X and Mrs Y in failing to prevent Mrs Y from falling from her bed resulting in injury to Mrs Y. Mrs X wants the Care Provider to consider refunding some of the care fees and to improve assessments to prevent a recurrence.

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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. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with the CQC.
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)

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How I considered this complaint

7. In considering this complaint I have:
• Contacted Mrs X and read the information presented with her complaint;
• Put enquiries to the Care Provider and reviewed its response;
• Researched the relevant law, practice and guidance;
• Shared a draft decision with Mrs X and the Care Provider and considered the comments received in response to that draft decision.

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What I found

8. In May 2016 Mrs Y entered Camplehaye Residential Care Home, Lamerton Way, Tavistock, Devon (the Home). Mrs Y entered a contract with the Care Provider under which either party may end the contract by giving four weeks written notice. If a resident leaves the home without giving notice the contract says the Care Provider may charge a payment of fees instead of notice. The contract also states on the death of a resident the Care Provider will not refund any fees.
9. The Care Provider conducted a movement risk assessment for Mrs Y on 17 April 2019. It said under the heading ‘Movement in Bed’:

“Due to [Mrs Y’s] decline in health staff will need to reposition [Mrs Y] every 2-3 hours due to water retention in legs and lack of mobility…”

10. Mrs X visited Mrs Y on 29 April 2019. Mrs X noted Mrs Y lay at the edge of her bed. Mrs X felt this presented a risk of Mrs Y falling from the bed and she took a photograph. Mrs X says the Care Provider had not used a bed guard or placed a thick crash mat at the side of the bed. In commenting on my draft decision, the Care Provider says it did not use a bed guard or mat because it assessed Mrs Y at no risk of falling from the bed. The Care Provider says had Mrs X shared her photograph with the Care Provider it may have revised its risk assessment.
11. On 30 April 2019 Mrs Y’s case notes record staff attended her and found she had fallen from bed onto a pressure mat. Staff put Mrs Y back in bed and installed a bed guard. The Care Provider contacted Mrs X. Mrs Y’s GP attended her later that day.
12. The Care Provider carried out a falls risk assessment on 1 May 2019. Mrs Y scored 77 points on the risk assessment meaning she had a very high risk and needed special assistance.
13. On 2 May 2019, the GP prescribed a ‘just in case’ prescription because Mrs Y had entered end of life care. Mrs X says the Care Provider did not tell her Mrs Y had entered end of life care. Sadly, Mrs Y passed away on 5 May 2019.
14. Mrs X raised her concerns with the Care Provider. The Care Provider says staff, including the Home’s manager, met with Mrs X on 30 May 2019. The Care Provider discussed the lack of a bed guard or crash mat with the team leader for the night shift at the Home. Staff said Mrs Y did not present any risk because:
• Mrs Y had no history of falling out of the bed;
• Mrs Y could not move herself unless repositioned by staff.
15. Therefore, staff said, they did not judge it necessary to take preventive measures.
16. At the meeting on 30 May 2019 staff apologised for the distress caused and said the Care Provider had learned from the event. The Care Provider says it ensures staff place a crash mat alongside the bed of any resident who may be at risk of a fall. However, in its view on 30 April 2019 Mrs X did not pose a risk of falling from the bed.
17. Mrs X sent a letter to the Care Provider on 7 June 2019 raising her concerns about the lack of a risk assessment and measures taken to prevent injuries to Mrs Y. Mrs X said she had paid the monthly fees for Mrs Y’s care on 1 May 2019. However, Mrs Y received only 5 days care and given the failure to prevent a fall Mrs X asked the Care Provider to refund the care fees. The Care Provider says it had assessed the risk but did believe Mrs Y to be at risk.
18. In response to Mrs X’s letter the Care Provider wrote to Mrs X on 11 July 2019. The letter explains the contract says the Care Provider does not refund fees paid in advance. The Care Provider explained as a small business it cannot afford to refund fees but “… as a gesture of goodwill….” it offered Mrs X a payment of £500.
19. On 20 July 2019 Mrs X wrote again to the Care Provider. Mrs X pointed out Mrs Y passed away on 5 May 2019, and her room cleared on 6 May 2019. Mrs X said she believed the Care Provider re-let the room a few days later suggesting it could afford to pay more of the care fees paid than £500 which Mrs X considered ‘derisory’. Mrs X suggested a payment of £1500.
20. On 22 July 2019, the Care Provider told Mrs X it could not offer more. The Care Provider said if Mrs X wished to make a claim, she could do so against the Care Provider’s insurance policy and invited Mrs X to say if she wanted to do that. Mrs X responded the same day saying if this resolved the issue then the matter should go to the Care Provider’s insurers. Mrs X said the meeting with staff on 30 May 2019 had not resolved anything.
21. That same evening the Care Provider sent an email in response in which it said:

“You have not a case and I am no longer interested in having a dialogue with such a woman who clearly is after money and self interest and clearly is trying to make a bribery claim on our company? So good luck with the Ombudsman but think you’ll find our solicitors will defend against a common bribery claim? Good Luck!”

22. Mrs X says this response came as a shock. Mrs X said she had simply done what the Care Provider suggested and told the Care Provider she wanted the Care Provider to put her claim to the Care Provider’s insurers. Mrs X says she did not expect such an unprofessional response from the Care Provider and had no choice but to complain to the Ombudsman.

Analysis – did the Care Provider cause an injustice?

23. My role is to consider how the Care Provider managed Mrs Y’s care and responded to her complaint. It is not to decide on matters of negligence those are matters for the courts should the Care Provider’s insurers not accept any claim.
24. Hospitals and care professionals have moved away from the use of guard rails around beds unless they are considered necessary. Instead professionals will use crash mats of various thickness to soften a fall and prevent injury.
25. Mrs Y’s case notes say she fell onto a mat but until her fall the Care Provider did not consider her at risk of falling. Once that assessment changed, the Care Provider affixed guard rails to Mrs Y’s bed. The Care Provider says if it had seen Mrs X’s photograph and she had expressed her concerns it may have re-assessed Mrs Y. It should not need Mrs X expressing concerns before staff assessing Mrs Y realised her position at the edge of the bed created a risk. I note following the fall the Care Provider installed a bed guard.
26. The contract clearly states the Care Provider does not refund fees. That does not mean it can never exercise its discretion to offer a refund or partial refund. Staff apologised for the distress caused and said the Care Provider had learned lessons. That apology and comment suggests the Care Provider accepts it needed to learn lessons from Mrs Y’s experience.
27. The Care Provider offered a goodwill payment of £500 which Mrs X refused. Mrs Y did not receive a full month’s care because she died five days into that month. The Care Provider says as a small business it cannot afford to refund care fees and residents and their families accept that as part of the terms of the contract.
28. It is for the courts to decide if a party has complied with the contract and to decide if any negligence took place. However, I may consider how the Care Provider supervised Mrs Y’s care. The risk assessments in April 2019 show she is at a ‘very high risk’ of falling should she try to move about the Home. There is no clear written record of a risk assessment of Mrs Y’s likelihood of falling-out of bed until May 2019. Mrs Y's immobility meant she needed help in turning in bed. That should not mean staff rule out the possibility of Mrs Y trying to turn as people do when asleep. Such an involuntary movement may be enough to increase her risk of a fall. Mrs X noted Mrs Y lay on the edge of her bed. Mrs X photographed the position because of the concern she had. I find the risk assessment should not rely on Mrs X sharing her photograph and concerns before staff recognised the risk to Mrs Y from her position in the bed. But for that failure the Care Provider may have placed a guard to prevent fails on Mrs Y’s bed as it did after this event. We shall never know if this may have prevented Mrs Y’s fall and that causes Mrs X injustice.
29. I applaud the Care Provider’s willingness to learn from the incident. I applaud its offer of a payment in recognition of the distress caused.
30. In responding to the complaint, the Care Provider should exercise care to be sensitive to the complainant’s circumstances. Care providers may offer a robust defence but should remain within the boundaries of what the public may reasonably expect of a professional organisation. The email sent on 22 July 2019, just two months after Mrs Y’s death, fell short of the standard residents, their relatives and the public have a right to expect. The response caused shock and distress. I find the Care Provider caused an injustice in its response.

Recommended and agreed action

31. To address the injustice caused I recommend the Care Provider within four weeks of my final decision:
• Issues a written apology to Mrs X;
• Pays Mrs X £500 in recognition of the injustice caused by the faults identified in this investigation.

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Final decision

32. In competing my investigation, I find the Care Provider caused an injustice.

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Investigator's decision on behalf of the Ombudsman