Summary: Mrs X complained about a delay in the service, commissioned for Mr Y by the Council, seeking medical advice following a sudden change in his mobility. She also complained about the response to her complaint about this. She says Mr Y was not the same person after these events and it caused the family “emotional damage”. We find the Care Provider did delay seeking medical advice and the Council’s safeguarding enquiry could have been better. We recommended the Council apologise, pay Mrs X £500 and reimburse Mr Y’s contribution to his care for a short period. It should also make sure safeguarding enquiries do not just accept a Care Provider’s findings without question. The Council has agreed to do this.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of her father, Mr Y, that Abbotsleigh Mews Care Home, the Care Provider commissioned by the Council:
• Delayed seeking medical attention for Mr Y when he became unable to walk following an unwitnessed fall.
• Was not open and honest in its complaint responses.
2. Mrs X says Mr Y was not the same person after this happened. He also lost his independence, and this affected his mental health. It also caused the family “emotional damage”, and they lost trust in the Care Provider. Mrs X would like the Care Provider to admit it was at fault and agree a financial remedy for Mr Y.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. 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 CQC.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

CQC

9. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

Fundamental Standards of Care

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
11. Regulation 12 is about safe care and treatment. CQC’s guidance says:
12. “Providers must do all that is reasonably practicable to mitigate risks. They should follow good practice guidance and must adopt control measures to make sure the risk is as low as is reasonably possible. They should review methods and measures and amended them to address changing practice.”.

Safeguarding

Overview

13. 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. (section 42, Care Act 2014)

What happened

14. Mr Y lived in Abbotsleigh Mews Care Home (the Care Provider) run by BUPA. He was active and able to move around the home.
15. From admission in 2020, to April 2021, Mr Y’s Waterlow assessments noted he was “fully mobile”.
16. Mr Y had a fall in November, and two in December 2020; two of these were unwitnessed. On the day after the unwitnessed fall in November, staff noted that Mr Y complained of pain and the nurse in charge administered Paracetamol. The note said staff were to continue monitoring Mr Y “while he is mobilising around the unit”. In August 2020, a review of his falls risk assessment noted he was at a high risk of falls. It noted that it should “discuss the falls risks with the family and involve them in developing a care plan”. Mr Y’s “moving around” care plan dated 24 July 2020 said staff were to ensure he used his walking stick when mobilising. There is an undated comment added which says Mr Y “often forgets to use his walking stick or will misplace it. [Mr Y] can walk independently.”.
17. Mr Y also had a fall on 4 June 2021 where he slid down a wall.
18. On 20 December 2021, around 8am, Mr Y was sitting in a chair and was unable to move. At lunch time he struggled to stand so staff sat him in a wheelchair, helped him to bed and left him to sleep. He complained of pain so a senior nurse checked him. They noted he had turned himself in bed and advised staff to monitor him to see if the pain subsided. The records of subsequent checks note that he seemed brighter and had not reported any further pain.
19. In the early afternoon the following day, the Care Provider’s records note Mr Y had “very poor” mobility and complained of pain in his lower legs. The Care Provider’s records state that Mrs X was notified about Mr Y’s poor mobility at around midday. Mrs X says she called the Care Provider who “finally answered” at 14:06hrs. The Care Provider’s records note Mr Y walked a few steps but was in a lot of discomfort and staff were unable to get him to stand. He complained of pain in his back and stomach. Mrs X says it later took two paramedics and a care worker to hold Mr Y up so she does not believe he walked a few steps. Later that afternoon, staff called 111 and paramedics attended, and Mrs X arrived. Mr Y could still not walk and they took him to hospital. The reason for the transfer was given as “no mobility”. The Care Provider said it did not detail a fall on the transfer summary because Mr Y had not fallen that day as far as staff were aware. The most recent fall, as far as staff were aware, was on 30 November and there had been no other concerns about Mr Y’s mobility since then.
20. The hospital advised the Care Provider it was giving Mr Y intravenous antibiotics for an unspecified infection. Mr Y had not mobilised. The hospital diagnosed Mr Y with a leg/hip fracture. He was dehydrated, delirious and had an infection. This was not a new injury and could have been present for several days. The Care Provider did not know how, or when, the injury occurred.
21. Initially, the Care Provider planned to give notice to Mr Y because his needs had increased. Mrs X was also unhappy for him to return to Abbotsleigh Mews as she had lost faith in the Care Provider. However, the Council provided funding for 1 to 1 care for Mr Y, and Mrs Y decided a move would not be good for him. He returned to Abbotsleigh Mews after almost four weeks in hospital.
22. I should note that I understand the hospital did not diagnose Mr Y’s fracture for several days. Also, that falls are not the only possible cause of such injuries. Mrs X feels that, had Mr X not been in such severe pain, with a widespread infection and delirium, his injury would have been easier to detect. She says this would have been the case had Mr Y gone to hospital sooner.
23. The Council began a safeguarding enquiry. It implemented 1:1 care to minimise the risk of falls and recommended staff seek medical advice promptly when there is a change in mobility. Mr Y’s care plans and risk assessments were updated and his medication reviewed by the GP. The enquiry was closed when Mr Y sadly died a few months later.
24. When Mrs X complained to the Care Provider about these events, she was not satisfied with the response it gave and wrote to this effect in March 2022. She was unhappy that the Care Provider had not provided information about Mr Y’s fall to the hospital, when he transferred there. She also remained unhappy about the Care Provider’s failure to alert the emergency services or herself sooner. She felt the Care Provider should have alerted her on 20 December 2021.
25. The Care Provider wrote to her again in early April 2022. It apologised for not updating Mrs X on Mr Y’s general wellbeing on 20 December 2021. The Care Provider signposted Mrs X to us if she remained unhappy with its response at stage two, which was the final stage of its complaints process.

Was there fault which caused injustice?

26. On the morning of 20 December, the Care Provider found Mr Y unwilling to stand and complaining of pain. This was entirely out of character for Mr Y and, on the balance of probability, sufficiently concerning to need greater consideration than was given. This should have prompted staff to call 111 or the GP, and to contact Mrs X. There is no evidence of risks being considered, including whether it was wise to move him to his bed. Staff were not aware of a fall but Mr Y had fallen several times unwitnessed, so this is something that should have been considered along with other potential causes of injury. This was also good reason to update Mrs X about his wellbeing. This was fault and caused Mr Y a significant increased risk of harm and significant, undue, frustration and uncertainty to Mrs X. Sadly, I cannot now put right much of the injustice to Mr Y. However, I recommend that any costs Mr Y paid for his care from 20 December until he returned to Abbotsleigh Mews, are reimbursed to his estate.
27. On 21 December, Mr Y walked a few steps in a lot of discomfort and staff were unable to get him to stand. This should again have prompted staff to call 111 or the GP, but it did not do this for several hours, though it did alert Mrs X at this stage. The Care Provider should have recognised the potential for serious injury, which Mr Y would have had difficulty communicating due to his dementia. I cannot say it should have realised Mr Y had a broken leg/hip because even the hospital did not identify this for several days. I also cannot say that had the Care Provider contacted the GP or 111, that Mr Y would have been taken to hospital at that time. Even if he had gone to hospital sooner, it is possible he would still have waited several days before diagnosis. Therefore, we cannot say the outcome would have been much better. Since the Care Provider’s delay in seeking medical advice and updating Mrs X is a potential breach of regulation 12, I will submit a copy of the final decision to CQC.
28. The Council’s safeguarding enquiry did not consider how the injury might have occurred other than assuming Mr Y had fallen at some point. While this may have been the most likely reason, an investigation into this, involving medical professionals at the time, might have found more information.
29. I found no fault with the way the Care Provider responded to Mrs X’s complaint. It could not be open and honest in the way Mrs X expected because it did not know what had happened to cause the injury. It was open and honest about this.

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Agreed action

30. 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, although I found fault with the actions of the Care Provider, I have made recommendations around this, to the Council.
31. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mrs X for the faults identified above and set out what the Council has done/will do to avoid similar problems in future (see paragraph 32 below).
• Arrange for a further apology to Mrs X from the Care Provider (see paragraph 32 below).
• Reimburse any contributions Mr Y made to his care from 20 December 2020 until he returned to Abbotsleigh Mews.
• Pay Mrs X £500 in recognition of the distress this caused her.
• Ensure that safeguarding enquiries do not just assume the position as determined by the Care Provider, but properly question events and seek other information to support this where possible.
32. The Council agreed to these recommendations, however, Mrs X does not wish to have an apology from either the Council or the Care Provider. She says she is “deeply disappointed” by the actions of the care staff and feels an apology from the Care Provider would be an insult.
33. The Council should complete the remaining actions within six weeks of my final decision and provide evidence that it has done so.

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Final decision

34. I have completed my investigation and uphold Mrs X’s complaint. If the Council completes the agreed actions, it will remedy the injustice caused as far as possible.

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Investigator's decision on behalf of the Ombudsman