Summary: We have found fault with pressure care management and record keeping by a care home. On balance we do not consider this caused harm, but it has led to uncertainty around pressure care and the speed of recovery. The Council and the care home accepted our recommendations, which included action to address the faults with record keeping and maintaining care plans, and to apologise to the complainant for the distress caused by the uncertainty.

The complaint

1. Mrs X complains about the quality of care provided to her mother, Mrs Y, by Care UK - Carpathia Grange (the Home) between December 2021 and January 2023. She complains about:
• The care her mother received, particularly about pressure area care, and a lack of personalised 1-1 support to encourage rehabilitation;
• Inadequate and poor record-keeping;
• Lack of notice to end contract; and
• Inadequate General Data Protection Regulation (GDPR) procedures at the Home.
2. Mrs X says her mother suffered unnecessary pain and distress because of poor pressure care. She considers her mother’s general condition declined more quickly than it would otherwise have done because of inadequate personalised support to encourage rehabilitation. Mrs X also says poor record keeping negatively impacted on Mrs Y’s NHS Continuing Healthcare application and made the process unnecessarily long.

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The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
5. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
7. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

9. I have not investigated Mrs X’s complaint about a data breach by the Home. The Information Commissioner’s Office (ICO) is the appropriate organisation to consider this concern. The ICO is the UK’s independent authority set up to uphold information rights and to regulate data protection matters. I therefore consider it is best placed to consider the issues raised in Mrs X’s complaint about data protection.
10. I have investigated Mrs X’s complaints about the care her mother received, record-keeping and the notice to end the contract.

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How I considered this complaint

11. I have considered information from Mrs X, the Council and the Home, including complaint correspondence, health and social care records. All parties had the opportunity to comment on a draft of this decision statement and any comments were taken into account before reaching a final decision.
12. This complaint includes social care which the Council is responsible for as commissioner. It also includes nursing care which fall under the jurisdiction of the Health Service Ombudsman. Following the approach of the Health Service Ombudsman we consider the Home, as provider of the nursing care, to be the responsible organisation for these parts of Mrs Y’s care.
13. I am investigating the Council as commissioner of Mrs Y’s social care at the Home while it was funding this.
14. I am investigating the Home as provider of Mrs Y’s health and social care when she funded her own placement, with an NHS-funded nursing care contribution.

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What I found

Legal and administrative context

Fundamental Standards of Care

15. 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 which care must never fall below.
16. Regulation 17 states providers must securely maintain accurate, complete and detailed records in respect of each person using the service.
17. Regulation 14 sets out that providers must make sure people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so.

MUST

18. The Malnutrition Universal Screening Tool (MUST) is a flow chart consisting of five steps, which are used to identify adults who are malnourished, at risk of malnutrition or obese. MUST also contains management guidelines for use in developing care plans to ensure nutritional needs are met.
19. If someone is assessed as being at high risk of malnutrition, they should be referred to a dietitian or nutritional support team and have increased monitoring.

Pressure care

20. Pressure sores (also called pressure ulcers or bed sores) are wounds caused by pressure on part of the body interrupting the blood supply to the skin. People with mobility difficulties and who are over 70 are more at risk. Under the European Pressure Ulcer Advisory Panel classifies pressure sores in six categories. These range from category 1 (indicating the first signs of pressure damage) to category 4 (indicating severe pressure damage, usually a deep wound that may go down to the bone and the death of underlying tissue).

Mental Capacity Act

21. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
22. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions

Discharge to assess

23. Discharge to assess is an arrangement to enable hospitals to discharge people sooner into a care placement so their needs can be fully assessed. Assessments can be for social or health care needs. These placements are usually temporary and once a person has had their needs assessed, a decision is made about how their future care needs can be met and the location (i.e. in a person’s own home or in a suitable care placement).

Continuing Healthcare and NHS-funded healthcare

24. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
25. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. The NHS sets a weekly rate for FNC funding.
26. A person’s local Integrated Care Board (ICB) is responsible for assessing their eligibility for CHC or FNC and providing the funding. ICBs sometimes commission other NHS organisations to carry out the assessments on their behalf.
27. For CHC, an ICB will usually arrange a multidisciplinary assessment and complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment. If, after a full multidisciplinary assessment a person disagrees with the ICB’s decision that they are not eligible for CHC or FNC, they can ask the ICB to review its decision. If they disagree with the outcome of the review, they can appeal to an Independent Review Panel (IRP) organised by NHS England.

Brief background

28. Mrs Y went into hospital following a fall in October 2021. The hospital discharged Mrs Y to a rehabilitation placement, before she transferred to the Home under discharge to assess arrangements. When Mrs Y first moved to the Home, she had several pressure injuries and needed regular repositioning.
29. Mrs Y had a DST completed in February 2022 and was not eligible for CHC. However, she qualified for a FNC contribution.
30. In April 2022, when the discharge to assess period had ended, the Home sent a contract termination notice to the Council. The Home sent Mrs X an email the same day explaining it had asked the Council to help find a new home for Mrs Y.
31. Mrs Y remained at the Home for a further nine months on a monthly contract. She funded her own care with a FNC contribution.
32. Mrs Y moved to a new home in January 2023. Mrs X complained to the Home in February 2023. The Home responded in March 2023 and Mrs X brought the complaint to the Ombudsmen in June 2023.
33. On appeal of the DST decision, the Independent Review Panel agreed Mrs Y’s care should be CHC funded. The ICB backdated this to cover the Home’s fees.

Analysis

Pressure care

34. Mrs X complains about the pressure care the Home provided to Mrs Y. She considers this led to Mrs Y’s pressure sores worsening.
35. The records show a Tissue Viability Nurse (TVN) saw Mrs Y in hospital. The TVN noted several pressure sores and that heels were “extremely vulnerable”.
36. When Mrs Y moved to the Home in December 2021, the Home’s care records show she had five pressure sores. One of these was a category 4 wound on her heel and the other were all category 2. The Home made a safeguarding referral and told the CQC. This was in line with guidance for category 4 pressure sores.
37. The TVN reviewed Mrs Y in January 2022 and they provided advice and a plan for the Home to manage and treat Mrs Y’s pressure sores.
38. The Home updated Mrs Y’s care plan to include the TVN’s advice. The care plan also noted Mrs Y had an air mattress and that staff should reposition her every two hours.
39. Later care plans during 2022 are less clear. These continue to reflect that staff were repositioning Mrs Y every four or six hours, but still noted Mrs Y needed two‑hourly repositioning. This lack of clarity in the care plan may have contributed to some confusion and the records show the Home did not reposition Mrs Y every two hours. This lack of clarity was not in line with the fundamental standards and is fault with the Home’s record keeping.
40. The records do show staff repositioned Mrs Y regularly, mostly four or six-hourly, and the Home completed other pressure care in line with the TVN’s advice. The records also show Mrs Y’s pressure sores improved steadily and they were all healed by July 2022. The TVN team then closed its involvement.
41. There was fault that the Home did not complete two-hourly repositioning in line with the care plan. The Home has already accepted this fault in its complaint response to Mrs X and in response to our enquiries. Since Mrs X made her complaint, it has taken action to improve this and removed variable positioning times. It now has set times of either 2 hourly or 4 hourly based on condition of the resident. The Home has also confirmed part of its ongoing quality action plan is to check supplementary charts.
42. Mrs X considers Mrs Y’s pressure sores got worse because of the faults in pressure care by the Home. Pressure sores can heal at different rates depending on various reasons. These include nutrition and mobility. The records show Mrs Y’s pressure sores healed well and were all fully healed by July 2022, despite her mostly being nursed in bed and having a poor appetite. I note the TVN’s advice did not include specific advice about repositioning frequency and mainly concerned keeping the wounds clean, dressed and keeping pressure off Mrs Y’s heels.
43. The records show Mrs Y’s pressure sores improved. Whether more frequent repositioning would have helped these heal quicker would be difficult to say because of the number of reasons that could affect this. However, Mrs Y’s pressure sores improved consistently and fully healed within seven months. Records also show wound care and regular repositioning took place (albeit less frequently than two‑hourly). I therefore do not consider, on balance, there is enough evidence to show the faults caused Mrs Y harm. I do however appreciate some uncertainty remains for Mrs X because of the inconsistencies in the records.
44. The Home has already recognised the faults and has taken some actions to improve its service. I have recommended further actions below.

Support and rehabilitation

45. Mrs X complains about the lack of support and rehabilitation the Home provided for Mrs Y. She does not consider the Home provided the 1-1 support and encouragement her mum needed to recuperate and regain some of her independence and mobility. Mrs X said Mrs Y’s leg muscles wasted a lot from prolonged time in bed rather than staff encouraging her to get up and move around.
46. Mrs X also complains the Home told Mrs Y’s GP wrong information about her nutritional needs and weight. This resulted in Fortisip (a nutritional supplement) being reduced and Mrs Y losing weight.
47. The care plan records staff should encourage Mrs Y to socialise with other residents and staff and take part in activities. The care plan also noted staff should encourage Mrs Y to mobilise and support her to regain as much mobility as possible.
48. In response to our enquiries, the Home said Mrs Y preferred her own company and almost always declined to join any group activities. It said Mrs Y liked to stay in her room and read a newspaper or speak to staff one-to-one.
49. The daily records show Mrs Y mostly stayed in her room, often preferring to stay in her bed to eat or watch television. The records also show Mrs Y sometimes refused personal care, particularly in the period soon after she had moved to the Home. Mrs Y was accepting personal care more as time went on, but she was still mostly in her room and in bed.
50. Records over the following months include entries that show staff tried to encourage Mrs Y to sit out of her bed or engage in other activities. However, there are fewer than 10 occasions during her time at the Home where staff recorded they had encouraged Mrs Y to sit out of bed, or that she had. This is not to say staff had not asked, but they had not recorded these discussions.
51. The occupational therapist and the Home did arrange for a specialist chair to encourage Mrs Y to sit out of bed, but this was not until September 2022. The records show Mrs Y did sit out of bed more after this, but still often refused.
52. There is little information to say how often staff encouraged Mrs Y to mobilise, sit out of bed or join in with other activities. On balance, if staff had asked Mrs Y to get out of bed or take part in activities, I consider it is likely Mrs Y may still have refused. However, these were set out in Mrs Y’s care plan for the whole time she was in the home. I therefore consider it is fault that the Home did not record attempts to encourage or support Mrs Y to leave her bed and/or room.
53. In considering the injustice, I have noted a geriatrician review in May 2022 stated Mrs Y was “very unlikely to walk again and is likely to deteriorate”. It also noted Mrs Y declines to engage in assessments for physio and “does not want to improve her current function”. Mrs Y’s pressure sores during the early part of her stay at the Home was also likely to contribute to her not wanting to mobilise.
54. Mrs Y was also on hourly welfare checks, which records show the Home completed. There are also several entries in the records showing detailed conversations with staff and that she was chatty or in a good mood. There were no concerns about Mrs Y’s mental capacity to decide where she preferred to be on any given day.
55. I therefore cannot say whether any fault with encouraging Mrs Y to mobilise or engage in other activities caused a decline in her physical health, especially given her poor prognosis. It is also evident Mrs Y was getting social interaction through regular contact with staff. However, the lack of records means there is uncertainty for Mrs X about whether staff gave Mrs Y the opportunity to sit out of bed or join activities as often as she would have wanted, or in line with her care plan.
56. The records show the Home monitored Mrs Y’s weight monthly from her admission. Apart from a drop immediately after she moved to the Home, these show her weight was steady and had increased when she moved to another care home in January 2023. The Home recorded Mrs Y’s MUST score and she was low risk of malnutrition from April 2022 until January 2023.
57. Mrs Y’s GP stopped the Fortisip in late 2022. At this point the Home had assessed Mrs Y as being low risk of malnutrition for several months and her weight had been increasing. It was the GP’s decision to stop the supplements and the Home were carrying out these instructions. The GP would have used information from the Home to reach a decision, including the Home’s records. These showed Mrs Y’s weight was steady/increasing, her malnutrition risk was low and she was eating well.
58. Mrs Y maintained her weight after this, suggesting the decision to stop the supplement was appropriate. The Home recorded Mrs Y’s MUST scores and these did not indicate referral to a dietitian. The Home managed Mrs Y’s nutritional needs in line with medical advice and national guidance. I have therefore found no fault.

Record keeping

59. I have noted some fault with record keeping in the issues above. The Home also accepted fault with record keeping in its complaint response to Mrs X. This related to the Home recording in the care plan that Mrs Y interacted well with other residents and had a hearing aid. The Home apologised for the inaccurate information and confirmed its senior team carried out regular documentation audits in the home to ensure residents’ records are accurate and person centred.
60. The Home said it would revisit care planning training for the nursing team to reinforce the care planning process. It also said it would issue all staff with the Nursing and Care records policy so staff are aware of the need for accurate and factual recording of information.
61. Mrs X considers faults with record keeping impacted on the first DST decision and prolonged the CHC process. The records show Mrs Y’s daughter was present at the DST meeting and could discuss any concerns. The CHC assessor used a range of available information to inform the DST decision. While this would include the care plan, it also included medical and daily care records. Importantly, it also included the family’s views.
62. Given the DST considers several different areas of care, the errors in the records highlighted in this complaint are unlikely to have had a significant impact on the decision. Mrs X later appealed the DST decision and CHC funding was awarded retrospectively to cover the full period. The injustice has therefore been remedied in this regard. However, as noted previously, there was fault with record keeping, in particular with care plans and reflecting Mrs Y’s needs in records that has caused uncertainty. I have made recommendations below to address this.

Notice to end contract

63. Mrs X complains the Home did not give her adequate notice that Mrs Y needed to move. She explained the Home issued a termination notice to the Council in April 2022. Mrs Y remained at the home on temporary contracts, but when she needed to move in January 2023, the Home did not send written notice before this.
64. The Home said it had previously given written notice to the Council, as it was funding the placement in April 2022. It did not consider it needed to give further notice. However, the Home apologised it did not clearly communicate the decision to Mrs X. The Home accepted it should have explained this to Mrs X in person or in writing.
65. I note the Home sent a four-week termination notice via the Council when the initial discharge to assess period ended in April 2022, in line with its contract. However, Mrs Y did not move out and the Home continued to support her under a temporary arrangement for another nine months. Mrs Y was self-funding (pending the CHC appeal) so arrangements should have been between the Home and Mrs Y (and her family).
66. The temporary contract renewed monthly so technically no formal notice period was needed. However, given this had rolled over for 9 months, the Home should have communicated better about the placement ending in January 2023. The Home has already accepted fault with its communication. However, the social care records show the Council managed the transfer and spoke with Mrs X about this when the time came for Mrs Y to move. This appeared to go well, and Mrs X has confirmed she is happier with the new care provider. While I appreciate the frustration and worry for Mrs X and Mrs Y at the time, I consider the actions taken provide a reasonable and proportionate outcome to this issue.

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Agreed actions

67. The Home and the Council have agreed to complete the following actions:
68. Within a month of the date of the final decision statement:
1. Apologise for the uncertainty caused to Mrs X by the faults with record keeping in the care plan, particularly around the frequency of repositioning and whether this may have delayed sores healing more quickly.
69. Within three months of the date of the final decision statement:
1. Take action to ensure record keeping at the Home is in line with relevant standards, including that:
1. staff completing and maintaining care plans are aware of the importance of these being accurate;
2. staff are aware of reflecting a person’s needs as set out in their care plans in daily records, even when care may be refused.
70. The Home and the Council will provide us with evidence it has complied with the above actions.

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Final decision

71. There was fault by the Council and the Home, which caused Mrs X an injustice. The Council and the Home accepted my recommendations to remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman