Summary: Mrs O complained about the care provided to her late husband Mr B in a nursing home. We found no evidence of fault by the nursing home in the actions it took when Mr B’s condition deteriorated and he went into hospital. We did not find fault in how the nursing home responded to the complaint. We found fault by the Council as it did not respond to Mrs O’s complaint. This fault caused Mrs O frustration. The Council has agreed to apologise to Mrs O and make improvements in how it handles complaints.

The complaint

1. Mrs O complained about the quality of care provided by her late husband Mr B’s nursing home, South Africa Lodge (the Home), in August 2022. Mr B’s care at the Home was the joint commissioning responsibility of Hampshire County Council (the Council) and NHS Hampshire and Isle of Wight Integrated Care Board (the ICB) under section 117 of the Mental Health Act 1983.
2. Mrs O complains that:
• The Home didn’t respond adequately or quickly enough when her husband became unwell, and only called an ambulance when she insisted
• The Home covered up what happened
• The Council failed to respond to her complaint about these events
3. Mrs O says her husband was hospitalised for two weeks due to dehydration and sepsis. She believes the impact on him could have been less if the Home had dealt with his deterioration sooner. Mrs O says the Home accused her of calling staff liars, and behaved towards her in a way that was rude and domineering. She says these events caused her frustration, anger and upset.
4. Mrs O wants the organisations to be held to account for what happened to her husband and how she was treated.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman 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. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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). If it has, we 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.
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. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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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How I considered this complaint

10. I have considered information Mrs O provided in writing and by phone. I also considered documents and comments on the complaint from the Council, the ICB and South Africa Lodge (the Home), including Mr B’s care records. I looked at relevant law, policies and guidance.
11. Mrs O and the organisations had the opportunity to comment on my draft decision. I took all comments into account before making my final decision.

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What I found

Relevant law and guidance

Section 117 of the Mental Health Act 1983

12. Section 117 of the Mental Health Act imposes a duty on councils and NHS Integrated Care Boards (ICB’s) to provide free aftercare services to people who who have been detained in hospital under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the person’s mental disorder, to reduce the risk of their mental condition worsening and the need for another hospital admission for their mental disorder.
13. In this case, the Council and ICB were jointly responsible for commissioning Mr B’s section 117 aftercare. South Africa Lodge was also an NHS-funded provider of aftercare services to Mr B under s117 of the Mental Health Act. This is because, under the Health Service Commissioners Act 1974, the Parliamentary and Health Service Ombudsman has the power to investigate and find fault with both the commissioner and the provider of NHS-funded care. For these reasons, we have investigated the Council, ICB and the Home.

Advance Care Planning

14. Information from NHS England about Advance Care Planning (ACP) explains that ACP is a process of person-centred discussion between a person and their care providers about their preferences and priorities for future care. This can lead to the development of an Advance Statement of their wishes and preferences. If the person lacks mental capacity, discussions about treatment escalation should take place with family / carers / someone with Lasting Power of Attorney (LPA) to make decisions on the patient’s behalf.

Fundamental Standards of Care

15. 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.
16. Regulation 12 says care and treatment must be provided in a safe way. CQC guidance says care homes “must have arrangements to take appropriate action if there is a clinical or medical emergency”. It also says care homes must work actively with others to ensure care and treatment remains safe for residents. They should also share relevant information with other professionals involved in residents’ care.
17. Regulation 14 says people must have enough to eat and drink to keep them in good health while they receive care and treatment. It also includes ensuring people get any prescribed dietary supplements and any necessary support with eating and drinking. CQC guidance says care homes must include residents’ food and drink needs in their initial needs assessments, and must act without delay to address any concerns about unnecessary dehydration or weight loss.
18. Regulation 17 is about good governance. It says care homes must keep secure, accurate and complete records of care and treatment provided to residents, and of decisions relating to that care and treatment.

What happened

19. This section provides an outline of events leading to Mrs O’s complaint. It is not intended to be a comprehensive account of everything that happened.
20. Mr B had a number of health conditions including advanced dementia and type 2 diabetes. At the time of the events Mrs O complains about, Mr B had lived at South Africa Lodge Nursing Home since late 2019. His care at the Home was arranged and funded under section 117 of the Mental Health Act.
21. Mr B’s care plan explained he was unable to communicate his basic care needs to staff due to dementia. He needed prompting and help from staff to eat and drink. His care plan said he needed to be offered over 1500mls of fluid per day. The care plan said Mr B was at increased risk of dehydration due to his cognitive impairment, continence difficulties, his dependency on others for eating and drinking, and the use of laxatives. Mr B wore incontinence pads.
22. On a day in mid-August 2022 Mr B became unwell. When staff at the Home checked him at around 6am they noted in his records he was ‘drenched in sweat’. When Mrs O visited at 11am she said she felt her husband was unwell, and a nurse noted this in his records. A nurse came to check Mr B’s vital signs (temperature, heart rate, blood pressure and breathing rate, often called “observations”) and noted they were normal. She gave him paracetamol.
23. A nurse checked Mr B’s vital signs again at around 3pm and noted no change. Mr B was noted to be sleeping soundly with no signs of distress or discomfort. The nurse also noted staff had changed Mr B’s pad at 1.05pm and it was wet, which showed he was passing urine.
24. Mr B had recently completed a course of antibiotics for a urinary tract infection, so staff decided to carry out a urine dip test. This was done at around 4.45pm. This indicated Mr B was possibly developing another urinary tract infection (something he was quite susceptible to). Staff contacted the NHS 111 service for advice.
25. While waiting for a response from NHS 111, a nurse checked Mr B again at around 6.15pm. They noted no change from earlier in his vital signs. A doctor from NHS 111 phoned the Home at around 6.30pm. The doctor took details about Mr B’s condition, and said Mrs O needed to be spoken with about a potential treatment plan. The doctor felt Mr B appeared to be deteriorating quickly, had stopped drinking and risked becoming dehydrated. The doctor and Mrs O both decided an ambulance should be called, so Mr B could be taken to hospital for investigations.
26. At around 7.45pm Mr B was taken to hospital by ambulance. He was admitted to hospital and diagnosed with dehydration and sepsis. He stayed in hospital for two weeks while his condition was treated and stabilised. Mr B was then discharged back to the Home. Mrs O was unhappy with his care and raised concerns with the Home in September 2022.
27. Mrs O later said she wanted Mr B to move to a different care placement as she did not feel he was receiving good care at the Home. The ICB and Council had to find an alternative placement and arrange for Mr B to move, as they were jointly responsible for his care under s117 of the Mental Health Act. There were some delays while this was organised.
28. Mr B eventually moved to a new care home placement in July 2023. After he moved, Mrs O made a formal complaint to the Council about the events in August 2022. She said she had not wanted to complain while her husband was still a resident at the Home.
29. Mr B has since died.

The complaint

30. Mrs O complained to the Home that staff did not respond adequately or quickly enough to her husband’s deteriorating condition. She said staff were reluctant to call am ambulance and said it would make them “look stupid, it’s just dementia”. Mrs O said she felt her husband would have been left to die if she had not been at the Home and had insisted an ambulance was called.
31. The Home provided several complaint responses and also met with Mrs O. The Home said it felt staff had responded appropriately and had correctly sought medical advice from a doctor / out of hours service. It said Mr B’s presentation that day was nothing different than a normal day for him, until the urine dip indicated a possible infection.
32. The Home said when Mrs O had raised concerns about her husband’s condition, the nurse said she thought this may have been an “exacerbation of his dementia”. The Home said the learning from this would be not to automatically assume this, and it had discussed this with the member of staff concerned. The Home also said it was sorry Mrs O felt the decision about whether to admit Mr B to hospital was all placed on her. The Home explained that because there was no Advanced Directive / DNACPR in place, it had to make sure it was not “try[ing] to change someone’s mind in the midst of a stressful situation and help them to remember what was agreed at a clear time of thinking”.
33. Mrs O was not satisfied with the Home’s response and said it had fabricated the events and tried to cover up what happened. She also said the Home had accused her of calling the nurse in question a liar. She contacted the Council in July 2023, after her husband had moved to a different nursing home, to raise her concerns. The Council said it would deal with the issues under a safeguarding investigation.
34. Mrs O chased the Council several times between August and November 2023 but did not receive any information about the outcome of the safeguarding consideration. She then complained to the Ombudsmen in December 2023. She also raised her concerns with the CQC.

What I found

Response to Mr B’s deteriorating condition

35. I have looked at Mrs O’s account of events, responses from the Home, Mr B’s care records, and relevant standards and guidance.
36. Mrs O said she had to fight for staff to take her husband’s observations and to call for medical help. She also said the Home often mis-recorded things in her husband’s records, including that it said Mr B was given a drink at 11am that day but she was with him and this did not happen. She said parts of the complaint response were also incorrect.
37. In the information the Home sent to us, it said the day before Mr B became unwell there were no clinical concerns. He had eaten and drunk the usual amounts and his incontinence pads were wet which showed he was passing urine. On the day Mr B became unwell, staff took his observations at 11am and 3pm which did not show anything of particular concern, and there was no change to his clinical presentation. The Home said Mr B had been sleeping and was not showing any signs of distress or discomfort. He had also had a wet pad when it was changed at around 1pm.
38. I have reviewed the care records for Mr B. These align with what the Home said in its responses to Mrs O and us about when staff checked Mr B and what the nursing observations found. The care records show that the day before he became unwell, Mr B had several wet pads which shows he was passing urine. The records also document him having some fluids and opening his bowels (another indicator of hydration).
39. On the day he became ill, the records say Mr B had two wet pads changed, showing he was passing urine. They also include details of the nursing observations carried out at around 11am and 3pm, and the actions taken once the urine dip had been carried out which showed a possible urinary tract infection. The records also show a further set of nursing observations were done at around 6.15pm and the results were similar to those earlier in the day, showing no urgent concern.
40. The Home told us that since these events, it has introduced new systems and processes for recording the care provided to residents, particularly in relation to fluids. However, it said this would not have changed the care it provided to Mr B, as the daily records include entries about Mr B drinking and having good fluid output observed through wet incontinence pads, frequent bowel movements, well hydrated skin and no other signs of dehydration
41. I appreciate that Mrs O disputes the accuracy of the Home’s account of events and says it often mis-recorded things in the records as well. I am aware that Mrs O says she had to fight for staff to take her husband’s observations and she had to insist that an ambulance was called. The Home says this is not the case. It is difficult to resolve these two differing accounts.
42. As outlined in paragraph 7, we make findings based on the balance of probabilities. I have not seen anything that casts significant doubt over the entries made in Mr B’s records at the time about the care he was given, or anything that gives cause for concern about the validity of the care records.
43. Having carefully weighed up the information available, including Mrs O’s account, there is not enough evidence to substantiate the complaint that the Home did not respond appropriately to Mr B’s deteriorating condition that day.

Calling an ambulance

44. Mrs O said she had to insist an ambulance was called for her husband. She said the nurse told her it would make them “look stupid” if they called an ambulance as this was “just dementia”. The Home said this was not the case.
45. The Home said the nurse spoke with Mrs O about possible hospital admission for her husband. It said the nurse asked Mrs O for her input about what future treatment she wanted for her husband, and whether an ambulance should be called, as there was no Advance Care Plan in place. The Home said the NHS 111 doctor said Mrs O needed to be spoken with about a potential treatment plan for her husband. The doctor and Mrs O both felt an ambulance should be called for him.
46. As outlined in paragraph 32, the Home said it was sorry Mrs O felt the decision about whether her husband should be taken to hospital was all placed on her. The Home told us there seemed to have been a disagreement in communication; the nurse wanted to find out what Mrs O’s wishes were in relation to her husband’s care, but Mrs O had taken this as being the nurse saying they would not call an ambulance. The Home explained it was important for the nurse to explore these issues with Mrs O because Mr B lacked capacity to make decisions about his care, and it was right to explore the different options with Mrs O.
47. The NHS England guidance about Advance Care Planning explains that where a person lacks mental capacity, discussions about “treatment escalation” should take place with family / carers / someone with Lasting Power of Attorney (LPA) to make decisions on the patient’s behalf. When a person has advanced dementia, admission to hospital and active medical treatment is not always automatically appropriate. This is a case-by-case decision, and it is important for those caring for the person to discuss treatment options with family or carers, as was the case here.
48. It is, again, difficult to reconcile the conflicting accounts between Mrs O and the Home. Complaints of this nature, involving verbal discussions, can be subjective and often difficult to resolve. Two people can leave a conversation with different recollections or understandings about what has been said. Having carefully weighed up the evidence, including the notes of the discussion with the NHS 111 doctor about the plan of care for Mr B, I have not seen evidence of fault by the Home in relation to the decision-making about whether to call an ambulance for Mr B. Also, there is not enough evidence to substantiate the complaint that the Home also covered up what happened. I appreciate that Mrs O’s recollection of events is different from the account provided by the Home. I have not been able to resolve these differences through my investigation.

The Council did not respond to the complaint

49. Mrs O said she complained to the Council about these issues in July 2023, after her husband had moved to a new care placement. As outlined in paragraph 34, the Council said it would deal with the issues under a safeguarding investigation. However, despite Mrs O chasing the Council several times, she never received any information about the safeguarding outcome. She eventually complained to the Ombudsmen in December 2023.
50. Mrs O said the Council’s lack of response had caused her to feel frustration, anger and stress.
51. The Council told us it had contacted the Home at the time to gather information surrounding Mr B’s admission to hospital. The Council said it had concluded there was no evidence of abuse or neglect. The Council said it should have recorded this information on file but had not done, contrary to its processes.
52. The Council said it now has an improved recording system for safeguarding matters, which includes mandatory fields to make sure the process is followed and recorded. This includes communicating any safeguarding outcomes to the referrer. It also said it continues to remind staff of the importance of regular communication with families and individuals going through the safeguarding process.
53. The Council said it wished to apologise directly to Mrs O for its failure to tell her the outcome of the safeguarding consideration.
54. It was fault that the Council did not provide Mrs O with a response to her complaint or an outcome of its safeguarding considerations. Mrs O should have had a response and should not have been caused avoidable frustration and put to time and trouble through following this up with the Council to get an outcome. The Council told us it wishes to apologise to Mrs O.

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Agreed action

55. Within one month of our final decision, the Council has agreed to write to Mrs O to:
• apologise for failing to provide a response to her complaint / details of the outcome of its safeguarding considerations
• explain the actions it has taken to ensure appropriate communication takes place with families and individuals going through the safeguarding process
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I found no evidence of fault by the Home in its care and support for Mr B or how it responded to Mrs O’s complaint. I found fault by the Council as it did not respond to Mrs O’s complaint. The Council has agreed to apologise to Mrs O and outline the actions it has taken to improve.
58. I am satisfied these actions represent a suitable and proportionate remedy for Mrs O and I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman