Summary: There were some failures in the care provider’s care and treatment of Mr X which may have caused Mr X’s weight loss and poor hygiene. The Council (which commissioned the care) has apologised where there were failings. To remedy the injustice arising from the commissioned care provider’s failings, the Council agrees to offer Mr X a sum proportionate to the distress caused to him. Mr X has now left the home.

The complaint

1. Mr A (as I shall call the complainant) complains about the care and treatment of his disabled brother Mr X in a care home commissioned by the Council. He complains the care provider failed to attend to Mr X’s oral health resulting in a significant weight loss and failed to manage his personal hygiene properly.

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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. 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)
4. 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)

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How I considered this complaint

5. I spoke to Mr A. I considered all the information provided by the Council and by Mr A. Both the Council and Mr A had an opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

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 10 says that service users must be treated with dignity and respect.
8. Regulation 11 says that care and treatment must only be provided with the consent of the service-user: ‘where a person lacks mental capacity to make an informed decision, or give consent, staff must act in accordance with the requirements of the Mental Capacity Act 2005 and associated code of practice’.
9. Regulation 14 says that people’s nutrition and hydration needs must be met.
10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
11. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
12. 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.

What happened

13. Mr and Mrs A looked after Mr X for some years in their own home after the death of his parents. Mr A has power of attorney for his brother. Mr X has Down’s syndrome. In conversation with Mr X’s social worker on 2 June 2020, Mr A said Mr X’s behaviour was increasingly disruptive and they were finding it difficult to manage. He asked for some respite care as soon as possible.
14. The social worker arranged respite at Yohden Care Complex (Yohden). She noted “respite bed is available with potential if all goes well for long term placement. Agreed to discuss with family respite for 7 days then review with view to extended weekly/reviewing and if all happy with how respite goes.” Mr A agreed to the placement.
15. The home manager carried out a pre-admission assessment in consultation with the social worker and with Mr A. She noted it would be a respite placement looking to become permanent. She recorded that Mr X required prompting with eating, that he liked to have a bath and required help with his personal hygiene.
16. Mr X moved into the care home on 2 June. On 6 June Mr A had a heart attack and was admitted to hospital. The social worker extended the respite placement for a week and agreed to review it then. The case recording for 12 June notes Mr A had spoken to the staff at the care home and had no concerns about Mr X’s placement. He asked about extending it to a long-term placement. He asked for more regular reassurance from the care staff about Mr X’s wellbeing
17. On 7 July Mr A expressed concerns to the Council about Mr X’s care at Yohden. He said he had now been able to visit and had discovered Mr X dressed in someone else’s clothes; his hair had not been cut as staff had said it would; he had a rash which had spread to his stomach and dry skin on his face which Mr A said would not have happened if staff had applied the creams as they were told to; he had lost weight.
18. The social worker emailed the care home manager with Mr A’s concerns. The manager replied that staff members were cutting residents’ hair when they were able, as hairdressers were not allowed on site due to Covid 19 restrictions. She said Mr X did suffer from dry skin and staff were applying the creams supplied. She said staff had purchased Mr X’s preferred foods to encourage his appetite.
19. The Council arranged for a DoLS application to be completed for Mr X. A Best Interest Assessor (BIA) reviewed the information which the Council held about Mr X and noted the opinion of the section 12 doctor that Mr X lacked capacity to consent to his accommodation and care and treatment. The BIA concluded the DoLS authorisation was necessary to enable Mr X to receive care and treatment at Yohden and was the least restrictive option available. He recorded “At this very early stage there are encouraging signs that (Mr X) is gradually settling at Yohden Lodge”.
20. At the end of July the care home staff contacted a social worker with concerns about Mr X. They said Mr A was ‘not happy’ with them “as (Mr X) has not been bathed for about 4-5weeks (he is getting strip washed). (The staff member) advised that he screams and shouts and puts him arms out to stop anyone from coming near him, clearly distressed with this (both male and female carers have tried), she also reports that he will not tolerate being shaved.”
21. The social worker spoke to a senior member of staff at Yohden. She recorded “is unsettled and will not tolerate having a bath, he screams and shouts when carers go near him. He ripped his t.shirt yesterday and is going into other's bedrooms. Appetite ok but carers are finding food in bins and he has been seen putting his food onto other's plates….(Mr X) is being strip washed and staff are attending to his oral hygiene but (Mr X) is writing on himself with felt tip pens and carers are unable to remove the marks. Yohden had a meeting with (Mr X)'s brother at the beginning of the week to discuss these concerns but brother's suggestions are not working”. It was agreed the care home would ask Mr X’s GP to review his physical health although care staff said he showed no signs of a UTI which might have explained his behaviour.
22. Mr A also spoke to the social worker on 30 July. He was concerned about the care Mr X was receiving and said they only placed him in Yohden because of his (Mr A’s) heart attack. Mrs A said it was supposed to relieve them of the stress but was causing more because they were so worried about Mr X. Mr A asked if the GP could also investigate Mr X’s weight loss.
23. The care home records showed Mr X’s weight at 58.5 kg when he was admitted to the home. By 3 August his weight had fallen to 51.45kg. The GP prescribed fortified milkshakes.
24. By 7 August Mr X had put on some weight (now 52.35kg) after staff had started to put his food onto smaller plates. Care home staff recorded that they now removed his plate when he started to play with his food or put it on the floor, and offered dessert instead which he always ate. The care provider’s records show Mr X began declining food or only eating part of his meals from the beginning of July.
25. The District Nurse visited and took blood and urine samples which were reported to be normal. Mr X’s GP spoke to Mr A as he was concerned about the weight loss and said he had asked for a specialist nurse to visit Mr X.
26. A community nurse visited on 11 August and spoke to one of Mr X’s regular carers before she saw Mr X. The carer reported Mr X was often reluctant to have a bath but would have a strip wash instead. She said staff were not keen on shaving Mr X every day as requested because they thought it irritated his dry skin. The nurse’s notes record the manager told her Mr A had asked them to use a “hands-on” approach with Mr X to ensure his personal care was given.
27. Mr and Mrs A say the use of the term ‘hands-on’ was later used to suggest they had asked the care home staff to force Mr X to receive care. They say they were clear they did not want him to be forced but there were ways of nicely persuading him. The manager said Mr X’s needs were being met at Yohden.
28. On 12 August the community nurse spoke to Mr A and said she would be the point of contact for Mr X’s care from now on. Mr A said he was prepared to bring Mr X home to support him with regaining the weight he had lost since entering Yohden before a better placement was found. He said staff had not been wearing PPE when he visited, Mr X’s hair was thick with dandruff and his glasses were very dirty.
29. The community nurse found another placement which Mr A agreed to view. She spoke to the manager at Yohden and explained Mr A’s wish to remove Mr X. The manager now said she did not believe Yohden could meet Mr X’s needs and it would be better for him to be moved.
30. The community nurse accompanied Mr and Mrs A to Yohden to support Mr X’s move home on 17 August. She recorded, “(Mr and Mrs A) sorted through (Mr X's) belongings, some were missing, some damaged beyond repair and much of them did not belong to (Mr X) himself.”

The complaint

31. In September Mr A complained to the Council about the care provided to Mr X in Yohden. He said the care staff had taken no notice of the preventative measures he had explained to them on admission – such as the cream to prevent dry skin, the mouthwash to maintain oral health - and had neglected Mr X’s personal hygiene and weight loss to an extent he described as “heartbreaking”. He said staff neglected the necessary PPE measures put in place during the Covid 19 pandemic. He said Mr X should not have to pay the invoice for the care he did not receive in Yohden (for £1148.14).
32. The Council responded to the complaint. It partially upheld his complaint about the failure to attend to Mr X’s oral care and skin care as the care provider had omitted to record the use of the mouthwash or creams as advised. The Council said “the failure here may be one of recording. Nevertheless, the importance of good oral hygiene and the use of mouthwash was such that this should have been recorded and that fact is that on 11 occasions it was not. I can only conclude that on those days where there was no record, these tasks were not undertaken”.
33. The Council partially upheld the complaint about the failure to ensure Mr X’s personal hygiene. It said “The service user daily logs give an insight into some challenging behaviour at times”. It said “the presenting behaviours must be challenged and techniques used to encourage, cajole, persuade and direct (Mr X) to do the right thing. In this instance this means that care staff should ensure his personal hygiene is always taken care of and creams applied.” However, it went on to add that ultimately a service user cannot be forced to have a bath or have creams applied if they do not want it.
34. The Council upheld the complaint that Mr X had worn other residents’ clothes and some of his own clothing had gone missing.
35. The Council did not uphold the complaint that continuity of care was non-existent: it said “The Duty rota … consistently relied on the same staff with others rostered to assist on occasion to ensure the unit where (Mr X) resided was adequately covered”.
36. The Council upheld the complaint that there had been breaches of government guidelines in respect of social distancing.
37. The Council did not agree with Mr A’s assertion that Mr X should not have to pay for care which he said was “neglectful”. It said the care provider sought appropriate assistance from medical professionals and monitored weight, food and liquid intake. It agreed to reimburse Mr X for lost clothing if Mr A could provide an estimate of the value. It agreed there were areas for improvement, such as the need to adhere to medication regimes, and also need for additional training in managing challenging behaviour.
38. Mr A raised some further issues with the Council and the Council responded in January but there was no change to its position.
39. Mr A complained to the Ombudsman.
40. The care provider’s records show Mr X frequently declined to be showered and sometimes declined to be shaved.
41. The Council says there is no evidence that Mr X lost weight due to sub-standard care and a lack of adherence to oral hygiene regimes, as Mr A states. It says Mr X had previously contracted oral thrush while at home. It points out that the placement of Mr X in residential care, away from his family, was ‘a major change in circumstances with the potential to impact upon his physicaland mental health in the short term until he became settled.’ It says it does not believe the care was such that a fee waiver is appropriate.
42. Mr and Mrs A say the care home staff tried to discredit them. They say there are several omissions and falsehoods in the care provider’s description of events and have provided documentary proof of these.
43. The care provider says it accepts it could have done “even more” to try and engage Mr A.

Analysis

44. Mr X’s needs in terms of nutrition were not always met in the home. There was some attempt to rectify that after he had already lost a significant amount of weight, and some improvement was then recorded, but overall he lost 6kg in weight (although his weight remained within a normal range). The care provider should have taken action sooner to find ways of managing Mr X’s approach to food, and seeking professional advice. That was fault which caused injustice to Mr X and anxiety to Mr and Mrs A.
45. Similarly Mr X’s personal care needs were not always met. The care provider did not always engage him sufficiently to persuade him to comply with efforts to maintain his personal hygiene. That was a failure to accord him dignity and respect in terms of the regulations, and therefore fault which caused him injustice and his family anxiety about his well-being.
46. Mr X’s belonging were not treated with respect. He was dressed in other people’s clothes, and some of his own clothes were lost or ‘damaged beyond repair’.
47. There was no fault in the way the Council investigated the complaint. Mr and Mrs X believe the Council was at fault in the way it accepted the care provider’s version of events above their own; however, I have not seen evidence of fault in the process.

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Agreed action

48. Within one month of my final decision the Council will apologise to Mr X and offer him £500 for the distress caused to him as a result of the poor standard of care by its commissioned care provider;
49. Within one month of my final decision the Council will apologise to Mr and Mrs A and offer them £250 for the distress caused to them by the knowledge of the poor care at the care home;
50. The care provider has already taken steps to improve its procedures following the Council’s investigation, and within one month the Council will confirm to me those steps are satisfactory in terms of its contract monitoring.

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Final decision

51. I have completed this investigation on the basis there was fault which caused injustice to Mr X and his family: the actions outlined at paragraphs 44 – 46 will remedy the consequent injustice.

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Investigator's decision on behalf of the Ombudsman