Summary: Mrs X complained the Council commissioned care home provided inadequate care and support to her late mother, Mrs Y. The Council was at fault for the care home’s poor care planning and risk assessments and for its failure to properly monitor Mrs Y’s food and fluid intake. The Council has agreed to apologise to Mrs X to acknowledge the distress and uncertainty this caused her and pay her £500 in recognition of that injustice. It has also agreed to ensure the care home has carried out appropriate training.

The complaint

1. Mrs X complained the Council commissioned care home provided inadequate care and support to her late mother, Mrs Y. Mrs X says the care home left her mother to starve, dehydrate and slowly die. She says this caused her avoidable trauma, in addition to the grief of losing her mother.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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) In this case the Council commissioned the care home so we consider the Council is responsible for its actions.
4. 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)

Back to top

How I considered this complaint

5. I have considered information provided by Mrs X and the Council’s response to our initial enquiries.
6. I have considered the relevant law and guidance.
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

What I found

The relevant law and guidance

Detention under the Mental Health Act

10. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. Detention under section 2 of the Mental Health Act 1983 is for assessment of a patient’s mental health and to provide any treatment they might need. Detention under section 3 is for the purpose of providing treatment.
11. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.

Safeguarding

12. Section 42 of the Care Act 2014 says that a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

A Community Treatment Order (CTO)

13. A community treatment order is an order issued by the individual’s clinician to provide supervised treatment in the community for someone who has been detained in hospital for a mental health problem. If necessary, this allows the clinician to send the individual back to hospital if they need treatment.

CQC fundamental standards

14. 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 the fundamental standards and prosecute offences.
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 below which care must never fall. This includes:
• providers must make sure that people who use their services have adequate nutrition and hydration to aid good health. People must be provided with appropriate food and drink and any support they may need to achieve adequate nutrition (regulation 14); and
• providers must securely maintain accurate, complete and detailed records about each person using their service (regulation 17).

What happened

16. Mrs Y lived in her own home. She had complex mental health needs. After concerns were raised about increasing paranoia around eating and drinking and Mrs Y neglecting her personal care, Mrs Y was detained in an NHS facility under the Mental Health Act.
17. In late April 2022 a discharge meeting held at the NHS facility decided Mrs Y did not have the capacity to decide where she should be discharged to. It decided it would be in her best interests to go into residential care.
18. The Council completed a needs assessment. In addition, a nursing needs assessment completed in May 2023 noted Mrs had not experienced significant weight loss but needed prompting with eating and drinking. It noted that before she went into hospital she was eating and drinking very little due to paranoia. It said that while she had been in hospital her intake remained adequate, generally eating three full meals a day. It said she had been prescribed supplementary drinks because she was underweight but had refused to use them. It noted she was on diet and fluid charts to monitor her intake.
19. Mrs Y visited two potential placements and in May 2022 she was discharged to the care home. The Council arranged and funded the placement under its duty to provide section 117 aftercare. Mrs Y was discharged under a community treatment order (CTO) to ensure she took her medication regularly. On admission, the care home recorded Mrs Y’s weight as 40.8kg.
20. In early August the care home recorded Mrs Y’s weight as 42kg. The care home says the scales broke after this so no further weights were taken.
21. The care home completed a care plan and risk assessments. Under ‘mental capacity’ the care home’s care plan, updated in September 2022, noted Mrs Y had capacity to make her own decisions regarding care and treatment. It made no reference to Mrs Y’s mental health diagnosis or her CTO.
22. Mrs Y’s nutrition and hydration risk assessment noted a malnutrition universal screening tool score of 2 (MUST is a tool used to identify those at risk of malnutrition). This indicated she was at high risk of malnutrition. The risk assessment gave an overall rating of low risk for nutrition and hydration. The plan noted Mrs Y “eats and drinks a well portioned, balanced diet independently, although her eating and drinking is affected by her being particular when choosing her meals. [Mrs Y] has said that she only likes small meals. Feedback from the chef is [Mrs Y] has eaten most meals made for her…[Mrs Y] eats three meals each day, and has pudding with lunch and tea. [Mrs Y] also likes to have snacks between meals…[Mrs Y] has a normal, fortified and weight loss diet”.
23. It also noted Mrs Y was prescribed fortified drinks but did not drink them, although staff encouraged her to do so throughout the day. The plan said Mrs Y did not need her weight to be monitored.
24. It recommended staff present Mrs Y’s food attractively, in appropriately sized portions according to her diet. It said staff should return to check the meal was to Mrs Y’s liking and to offer pudding after lunch and tea and snacks in between meals.
25. Under general health the plan noted Mrs Y received medication twice weekly which could be given under restraint in her best interests. She has been willingly accepting this. It noted she was not compliant with drink supplements which had been prescribed.
26. The care home’s daily records did not contain any specific details on what exactly Mrs Y ate and drank and it did not complete food and fluid charts for Mrs Y. On some days the records noted she ate ‘well’ and on others that she ate a ‘fair’ amount. Some days noted she ate ‘more than half’ and others ‘less than half’ but without giving any indication of the portion size.
27. In early October 2023 the care home referred Mrs Y to the home care support team due to an increasing loss of balance and unsteadiness. The team advised someone would visit and take a blood sample. A staff member from the Community Mental Health Team visited the next day to administer Mrs Y’s regular medication. They spoke to the care home manager as they had concerns that Mrs Y seemed vacant and had a tremor but were satisfied the care home had already made a referral. Later that day the care home called 111 due to concerns about Mrs Y. A clinician assessed Mrs Y over the phone and said an out of hours GP would be in touch. There was no record of this happening.
28. The next day the care home rang 999 as Mrs Y was struggling to eat and drink. They suggested a GP visit. The care home contacted the GP who referred the care home to care home support. A member of the care home support team took a blood sample and suggested Mrs Y go to hospital but she refused. The following day the GP confirmed the blood tests indicated acute kidney disease and that Mrs Y required hospital admission. Mrs Y was admitted to hospital. The day after being admitted to hospital Mrs Y’s weight was recorded as 42kg. Mrs Y died in hospital later that month.

Safeguarding investigation

29. Mrs X contacted the Council to raise a safeguarding concern about the care of her mother at the care home, including her concerns regarding Mrs Y’s nutritional intake and whether the care home responded appropriately to Mrs Y losing weight. Mrs X said each time she had asked the care home it had said Mrs Y’s nutritional intake was fine but she feared her mother was getting thinner and more unwell. Mrs X said a member of medical staff told her there was little they could do to help when Mrs Y was admitted to hospital as she was too malnourished and dehydrated.
30. The safeguarding investigation, completed in late February 2023 made the following findings.
• The care home’s risk assessment stated there was no need to monitor Mrs Y’s weight.
• The care home’s nutritional risk assessment was inadequate due to the way it assessed Mrs Y’s capacity. It stated Mrs Y had capacity and made no reference to her mental health diagnosis.
• Mrs Y’s weight was only monitored in May and August 2022 and was not monitored effectively.
• The care home’s care plan gave Mrs Y a MUST score of 2, but this was likely not high enough, and the nutrition and hydration rating was also too low.
• The nursing needs assessment and social care assessment from May 2023 highlighted risks around nutrition. In error, these were not provided to the care home on Mrs Y’s admission. Had they been provided the care home said it may not have accepted her.
• From August 2022 to her hospital admission, there was no evidence Mrs Y lost weight.
• Mrs Y received medication fortnightly from a mental health professional and they did not raise any concerns about Mrs Y’s nutrition.
• Daily records from the care home indicated Mrs Y often only ate half a portion of her meal but her weight was stable.
31. The safeguarding investigation decided on the balance of probability that neglect around nutrition did not occur. It found there was poor practice in relation to the discharge from the NHS facility and admission to the care home. It concluded the care home acted appropriately in seeking care and assistance when Mrs Y deteriorated in October 2022. It noted the care home planned to provide training to staff on mental health issues, documentation and risk assessments. It recommended that all residents to the care home have pre-admission assessments. It made further recommendations about communication between the hospital and care home. It recommended further investigation of the poor practice of all the agencies involved.
32. Mrs X wrote to the Council in response to the investigation. Mrs X said she was satisfied with some of the outcomes but considered Mrs Y’s health difficulties were brought on by dehydration and malnutrition. She should have been weighed more frequently and her weight on entering hospital could have been misleading as it was potentially after she had received intravenous food and fluids. Mrs X said it was clear to family members at each visit that Mrs Y appeared to have lost weight.

Complaint to the care home

33. In early November 2022 Mrs X complained to the care home about her mother’s care. The care home responded in late November 2022. It felt it received insufficient information about Mrs Y when she transferred from the NHS facility. It said it should have visited Mrs Y at the NHS facility and carried out a pre-admission assessment.
34. It said Mrs Y often refused meals and staff actively encouraged her to eat an adequate diet. It said the problems with her eating were long-standing and had been documented by the District Nurse Team which visited her at the care home. It said Mrs Y’s weight remained stable until August 2022 when its weighing machine broke. The replacement did not arrive before Mrs Y’s hospital admission. It accepted Mrs Y’s care plan and nutritional risk assessment did not properly reflect the risks in Mrs Y’s case and that these should have been reviewed more regularly.
35. It said staff would attend training on mental health issues, documentation and risk assessing to update their knowledge.

Complaint to the Council

36. In May 2023 Mrs X complained to the Council. It responded to her in August 2023. It apologised for the delay and explained it had carried out an internal investigation as a result of the safeguarding investigation, which focused on discharge planning. It identified faults in the way Mrs Y’s discharge from the NHS facility and admission to the care home was handled. This included that the needs assessment and support plan, nursing needs assessment and CTO were not shared with the care home before Mrs Y’s admission. It made recommendations to prevent a recurrence of the faults in future.

Separate complaint considered by our joint working team

37. A separate complaint, considered by our joint working team, looked at Mrs Y’s discharge from the NHS facility to the care home. This acknowledged the faults which had already been identified by the Council through a safeguarding investigation in in February 2023 which made a number of recommendations for improving processes. The joint working team considered the organisations had learned from the fault and put service improvements in place.

Findings

38. The care home’s failure to carry out a proper pre-admission assessment of Mrs Y was addressed in the complaint considered by our joint working team. This acknowledged the faults and that each organisation had learned from this and made service improvements. This included ensuring the care home completed pre-admission assessments. I therefore will not consider this matter again.
39. When Mrs X raised a safeguarding concern about how the care home cared for Mrs Y, the Council properly investigated in line with its procedures. It involved relevant agencies, examined key records from the care home and sought input from Mrs X. It did not find the care home acted with neglect but identified failings in care planning. The investigating officer set out their reasoning and made recommendations for service improvements to prevent a recurrence of the failings in future. There was no evidence of fault in the way the Council carried out the safeguarding investigation. Mrs X’s subsequent complaints to the Council and care home identified further failings. I have seen no reason to question the findings of those complaint responses.
40. The Council’s safeguarding investigation found the care plan and risk assessments the care home completed after Mrs Y moved in were inadequate because they did not accurately reflect the risks to Mrs Y. I agree this was fault. The lack of a pre-admission assessment and the Council’s failure to provide the nursing needs assessment and care plan with the care home contributed to this. The care plan and risk assessments were not in line with the CQC fundamental standards on record keeping and is fault. The care home advised it would provide staff training in risk assessments and documentation. This is appropriate so I have made a recommendation to ensure the care home carries out the training.
41. Given the reason for Mrs Y’s admission to hospital and the care home, I would have expected the care home to record Mrs Y’s food and fluid intake. It also failed to weigh her regularly. This was fault and was a consequence of a lack of a proper pre-admission assessment and the sharing of documents as referred to above. However, Mrs Y’s weight shortly after her hospital admission was consistent with her weight in August 2022. I cannot know, even on the balance of probability whether Mrs Y’s weight fluctuated during that time. Mrs Y had a history of issues regarding eating and even if the care home had completed these records, I cannot say this would have made a difference to her care and wellbeing.
42. I also could not conclude, even on the balance of probabilities, that the failings identified contributed to Mrs Y’s death. However, the faults identified have caused Mrs X significant distress and have left her with an enduring sense of uncertainty of what would have happened if not for the faults. The injustice of distress cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault.

Back to top

Agreed action

43. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X and pay her £500 to acknowledge the distress and uncertainty caused by the faults identified; and
2. provide us with evidence that the care home has carried out staff training in risk assessments and documentation.
44. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

45. I have completed my investigation. On the evidence considered there was fault which caused an injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman