Summary: The care provider acknowledges it did not always provide a good standard of care for Mr X. The care provider also invoiced the family for 1:1 nighttime care which was not always provided in the way the family understood. The care provider should now offer a sum in recognition that the care was not always appropriate or agreed.

The complaint

1. Mrs A (as I shall call her) complains about the care provided for her father Mr X, who has dementia. She says the home called an ambulance to take him to hospital against the family’s wishes. She says it could not cope with his behaviour and gave notice. It charged for 17 nights’ 1:1 care which was not provided by a carer in the room.

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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 injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

5. I considered the information provided by Mrs A and by the care provider. Both parties had an opportunity to comment on an earlier draft of this statement 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 that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
7. Regulation 10 says service users must be treated with dignity and respect.
8. Regulation 19 says that service users or their representatives must be given “information about the costs, terms and conditions of the service, so that they can make decisions about their care, treatment or support”.
9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
10. 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. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions. 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.

What happened

11. Mr X became a permanent resident in the care home in March 2023 after a period of respite care. A clause in Mr X’s contract says, “where the home can show to reasonable satisfaction that the resident’s continued presence is having or would have a serious detrimental effect on the other residents, manager or staff at the home, the home would give 28 days’ notice to terminate residency”.
12. Mr X has dementia. Mrs A has joint LPOA for health and welfare with Mrs X. Mrs A says she believed her mother had made it clear to the care provider that they did not want Mr X admitting to hospital without contacting Mrs X first as it would disturb and upset him.
13. On 13 March Mr X had an unwitnessed fall in his room and the care provider called 111. The care provider says, “medical advice was sought as we could not rule out internal injury. 111 was called and they made the decision for paramedics to attend based off of the information given to them relating to the fall. Paramedics then made the decision to admit Mr X into hospital for further checks due to being on blood thinning medications and this was a decision not made by St Matthews. “
14. The care notes say, “Nurse I spoke to at the hospital informed us that they will be discharged (Mr X) back to us today and said due to (his) agitation in the hospital they had to administer lorazepam.” The notes continue, “(Mr X) has had a very poor intake of food and fluid today since returning from hospital. Has refused to take any medication, daughters present for the afternoon. (Mr X) is now going to one to one for the next couple of nights, and family will sit with him during the day. GP is visiting tomorrow and will sort a new DNAR. Family have expressed they do not want (Mr X) to be admitted into hospital and for him to remain comfortable here at St Matthews.”
15. The care provider says staff were not aware in advance of the discussion after 13 March that family did not want Mr X taking to hospital without a prior discussion with Mrs X due to the upset it caused him. It says,” Prior to the hospital admission for Mr X, St Matthews were not made aware that Mr X was never for hospital admission, only when Mr X was admitted to hospital was this deeply expressed and there were no further hospital admissions once this was made clear to the staffing team.”
16. Mrs X emailed the care home manager on 26 March to ask for a meeting about Mr X. She said she had asked for one-to-one care at night after his return from hospital but had not had any updates of his condition at night so she could decide whether to continue with the one-to-one care or not. The care provider says Mrs X did not request one to one care: it was suggested by the care home management as Mrs X had asked if there was additional staffing that could be provided for Mr X. The care home management suggested an external agency.
17. The care manager met Mrs X and Mrs A on 29 March. She told them that Mr X was much steadier on his feet but on occasions he had become distressed by the presence of carers in his room and the carers had to step out to prevent further agitation: on those occasions they monitored him closely from outside the bedroom door (which was left ajar) until he was settled, and they were able to return.
18. Following the meeting Mrs A emailed the care manager to confirm the one-to-one care would stop on the following Wednesday.
19. On 31 March Mrs A contacted the care provider again by phone and by email to discuss concerns about the behaviour of one carer. She said her father had obviously taken a dislike to this carer and reacted badly to her, but the carer seemed unable to deal with his behaviour. She also reiterated the one-to-one care should have stopped as agreed but had continued.
20. The care manager responded. She said all staff were trained to support residents with dementia, but more in-depth training was being put in place. She said the particular carer would not look after Mr X again until after she had met with her manager and could behave more positively. She confirmed the continuation of the one-to-one care was an oversight and would not be charged.
21. Mrs X and Mrs A also met Mr X’s doctor to discuss an advance care plan. Mrs A emailed the care provider on 3 April to say the doctor had agreed it was not in Mr X’s best interests to be taken to hospital if he had a fall unless there were obvious injuries requiring attention. The care manager responded that the care home would continue to follow its falls procedure and “of course” avoid hospital admission depending on the severity of the injury.
22. On 14 April Mrs A sent a copy of the completed advance care plan to the home and said under its terms, Mrs X must be consulted when the care provider needed to seek medical advice so she could make a decision in his best interests.
23. On 17 April Mr X went into another resident’s room and forcibly moved the resident from her chair. Mrs A says it took the care staff two hours to calm him down. The care provider wrote to Mr A on 20 April and gave 28 days’ notice to move Mr X: the manager said she believed Mr X might require a specialist dementia nursing unit to meet his needs.
24. Mrs A complained to the care manager on 25 April. She said some members of staff had not behaved well towards Mr X, in particular the carer about whom she had previously complained had been witnessed undressing her father and making him sit naked on a chair in his room, with the curtains open, while she prepared his shower, and the same following the shower. The same member of staff had been seen giving tablets without water or crushing tablets onto a spoon without fluids.
25. In addition, Mrs A said Mr X had been taken to hospital without consulting Mrs X, against the family’s wishes, and was so distressed afterwards that Mrs X had agreed to one-to-one care. She said they had little feedback about the care until they requested a meeting, at which they discovered that at times the carer was not even in the room with Mr X. She said they would have stopped the care sooner had they known this. She also said Mr X had suffered numerous infections which the family had to raise concerns about.
26. The care provider’s operations manager responded on 4 May. She said she had formally addressed the concerns around the behaviour of the named member of staff and apologised for what they had witnessed and Mr X had suffered. She said the administration of medication in the way they described was unacceptable and being addressed by the home’s management.
27. The operations manager also acknowledged that the home had not given the proper consideration to the family concerns about Mr X’s possible falls, hospitalisation and Mrs X’s LPOA. She said there should have been better communication about this and about the one-to-one care provision. She said the home management had said that on occasions the presence of the carer in his room had disturbed Mr X and been a trigger for behaviour, so they had made a best interest decision for the carer to sit outside the bedroom door on those occasions. She said the family should have been told and she apologised for the omission but added that it was an external agency worker who acted as the one-to- one carer and the invoice had to be paid in full.
28. Mrs A complained to the Ombudsman. She said they would have stopped the expensive one-to-one care sooner had they known the carer was sitting outside the bedroom door but in total Mrs X had paid over £3000 for 17 nights’ care. She also said the home had rushed to give notice without seeking advice from mental health professionals first.
29. The care provider now says as it does not have written evidence about when or how often the one-to-one carer decided to leave Mr X’s room, there is no evidence it was not provided. It says, “It is possible that space being given such as stepping out of the room could have been on minimal occasions however this was a more of a coping mechanise for the 1:1 carer at times when they felt unsafe in (Mr X’s) presence due to his physical contact towards them.”
30. The care provider says at the meeting on 29 March, the care manager explained that if the home felt Mr X’s needs had increased and it could no longer meet them, it would discuss that at the time. The care provider says “The Care Manager had a formal conversation with Mrs A and relative where they made Mrs A aware that STM could no longer meet Mr X’s needs due to the high level of safeguarding concerns that the family were already aware of.”
31. The care provider says in response to my draft decision, “The one-to-one carer only sat outside of the room to support Mr X to calm down, due to challenging behaviour to deescalate a distressing scenario for Mr X”.

Analysis

32. Although it was not fault for the carer not always to be present if it triggered Mr X’s difficult behaviour, the lack of communication about the presence of the carer in the room was fault which has caused Mrs X some injustice as it is likely she would have stopped the care sooner had she known its limitations.
33. The care provider has acknowledged there was poor practice by one carer in the way she managed Mr X without dignity or respect and has apologised for that.
34. The care provider acknowledges there was a failure of communication about the level of involvement of Mrs X if the care home felt Mr X should be taken to hospital.

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Recommended action

35. Within one month of my final decision, the care provider should acknowledge that its failure of communication about the one-to-one care caused some unnecessary expense. It cannot quantify the occasions when the one-to-one carer was not present so in my view it should make a symbolic payment to Mrs X of £500 in recognition of the loss its actions caused.
36. Within one month of my final decision the care provider should make a further payment of £300 to acknowledge the distress caused to Mr and Mrs X and their family by the poor practice of a carer in the way she treated Mr X.
37. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed this investigation. I find the actions of the care provider caused injustice to Mr and Mrs X and their family. Completion of the recommendations at paragraphs 33 and 34 will remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman