Summary: The Council’s commissioned care provider failed in its care and treatment of the late Mrs X. The Council investigated and upheld the complaints made by her daughter Mrs A, but was unable to take remedial contractual action as the care provider had already sold the home. The Council agrees that it will now offer a sum in recognition of the distress Mrs A was caused by the failings of the commissioned care provider.

The complaint

1. Mrs A (as I shall call the complainant) complains about the care and treatment of her late mother Mrs X in a care home placement commissioned by the Council; she also complains about the Council’s investigation of her complaints.

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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. If we are satisfied with a council’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)
3. 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 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

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How I considered this complaint

4. I considered the information provided by the Council and by Mrs A. We spoke to Mrs A. Both the Council and Mrs A had the opportunity to comment on a 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. The Care Quality Commission (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 fundamental care standards and prosecute offences
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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
7. Regulation 10 says that people must be treated with dignity and respect.
8. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital to show what services they might need. However, Section 117 of the Mental Health Act imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the Mental Health Act.  The free aftercare services referred to here are limited to those:

Arising from or related to the mental disorder and

Reducing the risk of a deterioration of the person’s mental condition (i.e. to prevent re-admission).

9. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.

What happened

10. Mrs X was placed in the Green nursing home under section 117 of the Mental Health Act in September 2018; her placement was principally funded by the Council with some NHS funding. She was also under the care of the Community Mental Health Team (CMHT). Mrs X had vascular dementia and bipolar disorder: she had previously been detained under section 2 of the Mental Health Act as she was neglecting herself in her own home. On admission to the Green she was said to be managing her own personal hygiene. Mrs X’s son was the named nearest relative for contact.
11. The care provider applied for and was granted a DoLS authorisation for Mrs X’s placement as she lacked capacity to consent to her care. Mrs X’s son agreed to be named as the Relevant Person’s Representative (RPR) as required by the DoLS regulations.
12. In January 2019 a request was made to extend the authorisation as the home said Mrs X’s behaviour while accepting personal care had deteriorated: “Demonstrates challenging behaviour around her personal and continent care. At times requires x4 staff to support her with her daily activities. (Kicks, punches, spits, swears and throws items.) Has no awareness of her personal care”. The Council agreed the authorisation (with conditions) for the use of up to four staff using restraint techniques to enable Mrs X to be showered “with reasonable force” if she had consistently refused for three days. It also agreed that medication could be administered covertly as Mrs X was refusing it.
13. Mrs A says her mother’s condition deteriorated while she in was the home. She says Mrs X was urgently in need of dental treatment as her denture had broken and she only had a few teeth left which limited her ability to eat properly, but the manager repeatedly told Mrs A she had arranged for a dental visit ‘next week’. Mrs A says the visit never took place. She says in the end she arranged an appointment with her own dentist and gave the home notice that she would take her mother, but on the day of the appointment the manager refused to let her take Mrs X from the home. The manager said insufficient notice had been given to arrange for staff to accompany Mrs X. Mrs A says the manager made many excuses and short notice was only one of these.
14. Mrs A also says her mother’s personal hygiene deteriorated significantly during her stay in the home. She says she frequently wore the same dirty clothes day after day. She smelled strongly of urine and faeces. Mrs A says staff told her Mrs X refused to have a bath but when she asked to see the bath, it was being used to store boxes. Mrs A says she was given contradictory reasons why her mother could not be bathed – that the bath was not working, that her mother had been shown the bath and then later that there was no point in showing Mrs X the bath.
15. Mrs A says she was speaking to her mother on the telephone in February 2019 when her mother suddenly fell silent. Mrs A called the paramedics. She says she tried to call the home but although the phone was ringing out, no-one answered it. Care home staff told paramedics Mrs X had found a phone, used it to call Mrs A but then dropped it: Mrs A says her mother could not remember her number or how to use a phone. She says the manager told her later the paramedics had checked Mrs X and left. Mrs A says she found it odd they had not admitted her as she was unable to speak. She says she later discovered the manager had prevented the paramedics from examining her mother.
16. In March 2019 Mrs A visited her mother and found her very unwell. She says the staff told her Mrs X had fallen but gave her conflicting stories about any medical treatment. Mrs A was so concerned she called the paramedics from the manager’s office. She says the manager shouted at her not to call 999. She says the manager and another member of staff sought to prevent her from returning to her mother’s room by pushing her away: they said she was wasting paramedics’ time. In the event when the paramedics attended they took Mrs X to hospital as she was slipping in and out of consciousness.
17. The Council says the hospital social work team undertook a safeguarding investigation following the concerns raised by the paramedics that staff at the Green nursing home were not concerned about Mrs X’s health. The hospital social work staff investigated this by speaking to the ambulance crew to see what evidence the call handler could provide and visited the home to look through the care notes. The safeguarding investigation was closed at decision making as there was no conclusive evidence either way.
18. Mrs X sadly died in hospital some weeks later. Mrs A says the hospital would not discharge her back to the Green. She says she was told Mrs X was severely dehydrated and had suffered a stroke some weeks before admission, which Mrs A believes was the episode for which she had called paramedics in February.
19. In September 2019 the care provider sold the home. It reported the manager to the Nursing and Midwifery Council for her conduct while she was manager. It also reported her to the Office of the Information Commissioner for breaches of data and for the standard of record keeping.

The complaint

20. In September 2019 Mrs A complained to the Council about the failure of the care provider to arrange or allow dental treatment for Mrs X, the neglected and dirty state in which Mrs X was allowed to remain, the failure to allow paramedics to examine Mrs X in February and the conduct of the manager in trying to prevent access to medical attention for Mrs X in March.
21. The Council investigated Mrs A’s complaints. It upheld all complaints except one - that Mrs A was not told whether a doctor had seen her mother in March: the records showed staff had updated Mrs A at the time. Mrs A is adamant no-one told her about her mother’s condition until she visited the home in person.
22. The Council wrote to Mrs A in December 2019 with its response. It explained its ability to investigate Mrs A’s complaints was hampered by the sale of the home, the departure of some nursing staff and in particular the poor quality of the record keeping at the home. It upheld a number of the complaints where the home was unable to provide evidence to refute Mrs A’s complaints. However, it found

• there was a significant delay in arranging dental treatment,
• the home should have done more to support Mrs X maintaining personal hygiene,
• there was no risk assessment or referral to an Occupational therapist about bathing,
• The manager would not allow paramedics to examine Mrs X in February and said she had examined her already but there was no evidence she had done so, or that Mrs X received any medical attention that night,
• Staff failed in their duty of care to Mrs X by failing to access medical treatment promptly after she fell in March.

23. The Council acknowledged there were serious shortcomings in the standard of care provided. It offered its sincere apologies. It said it would investigate practices at the previous care provider’s other homes to ensure the same practices were not being repeated. It had reported its findings to the CQC. It said its ability to take contractual action was limited as the home had been sold but it would send its findings to the previous owners.
24. Mrs A wrote again to the Council in January 2020. She said she had not known about the DoLS authorisation which allowed restraint of Mrs X and said she was horrified this was allowed. She said her mother had not just been ‘unkempt’ in appearance as the Council had said, she was filthy and smelled strongly. She expressed concern the paramedics had accepted the manager’s assurance in February and left. Mrs A says even in her youth Mrs X never liked showers and would always choose to bath. She says she believes the DoLS authorisation was sought because the care home staff were reluctant to try and have the bath fixed or arrange a hoist.
25. The Council wrote again to Mrs A. It continued to uphold the complaint but reinforced some elements of its findings. It explained the legal basis for the DoLS authorisation. In respect of the paramedics, the Council wrote, “the Lead Officer has still upheld this complaint but would like to reassure the complainant that the conduct of the Registered Manager is being addressed. The Green is a Nursing Home and in order to fulfil its registration with the Care Quality Commission must always have a registered nurse in attendance. Whilst I understand that you would feel that the paramedics had a duty to examine your mother, the lead nurse on duty would have spoken with the paramedics…..That it has been acknowledged that it is not clear whether (Mrs X) received any medical attention that evening is of significant concern. The Registered Manager does have to take ultimate responsibility and the previous owners have informed the Council that they have reported the Registered Care Manager to the Nursing and Midwifery Council regarding her conduct.”
26. The Council acknowledged Mrs A’s frustration that it seemed little could be done to remedy the injustice her mother had suffered. It concluded: “If the former Registered Manager or Nominated Individual look to move to another care home the information shared by the Council will be considered in their application for registration with the CQC”.
27. Mrs A complained to the Ombudsman.
28. The Council says the allocated social worker managed Mrs X’s transfer from hospital to the Green in March 2018. In October 2018 after a review with Mrs X, her consultant psychiatrist and her Community Psychiatric Nurse, he de-allocated the case. Mrs X remained under the care of the CMHT.

Analysis

29. The commissioned care provider failed to treat Mrs X with the dignity and respect she deserved and which the regulations require. That was fault which caused her and her family injustice.
30. The commissioned care provider failed to arrange or allow dental treatment to be arranged for Mrs X: that was also fault which caused injustice and made it significantly harder for Mrs X to eat.
31. The commissioned care provider failed on at least one occasion to allow medical personnel to examine Mrs X, and on another occasion tried to prevent Mrs A from calling paramedics even though Mrs X was “slipping in and out of consciousness”: That was fault which caused injustice to Mrs X and to Mrs A.
32. It was not fault for the commissioned care provider to seek an extension of the DoLS authorisation in accordance with the Mental Capacity Act to enable Mrs X to be showered.
33. The Council and the commissioned care provider took the steps available to them once the actions of the registered manager became known, by escalating the reports of her conduct to the relevant professional body and to the regulator.
34. The poor standard of record keeping appears not to have been noted by the allocated social worker during the eight months he was responsible for Mrs X’s placement at the home. It was also fault on the part of the commissioned care provider not to maintain accurate records in line with the CQC regulations.
35. The Council remains responsible for the conduct of the commissioned care provider, as set out in paragraph 3 above.

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Agreed action

36. As set out in paragraph 33, the Council has already taken the steps available to it to raise concerns about the conduct of the individual at the centre of the complaint;
37. Within one month of my final decision the Council will review the way in which social workers responsible for residents monitor the records kept for them;
38. Mrs X has now died and the injustice to her cannot be remedied. However, within one month of my final decision the Council will offer Mrs A the sum of £1000 in recognition of the significant distress she suffered in the knowledge of the poor treatment her mother received.

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Final decision

39. I have completed this investigation and found there was fault which caused injustice to the late Mrs X and to Mrs A. The completion of the recommendations at paragraphs 36 – 38 will remedy the injustice.

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Investigator's decision on behalf of the Ombudsman