Summary: Mrs Z, on behalf of her deceased mother Mrs X, complained the Care Provider failed to carry out a safeguarding investigation and failed to properly deal with data breaches. She says this cased her mother unnecessary anxiety and discomfort during the last few months of her life. The Care Provider has accepted fault in respect of cleaning, meal provision and that a data breach occurred. It determined the threshold for a safeguarding investigation was not met. The Care Provider has taken appropriate action in respect of the faults found in this case.

The complaint

1. Mrs Z, on behalf of her deceased mother, Mrs X, complains the care provider failed to carry out a safeguarding investigation and failed to properly deal with data breaches.
2. Mrs Z says this caused her mother unnecessary anxiety and discomfort during the last few months of her life. She also says that the process of raising these issues on behalf of her mother was time consuming and distressing.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the care provider, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, sections 34B(8) and (9))

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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Care Provider and the complainant’s representative and taken account of their comments in reaching my final decision.

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What I found

7. This section sets out the key events in this case and is not intended to be a detailed chronology.
8. Mrs X moved into Resthaven Nursing Home, a Lillian Faithfull Home, in Gloucestershire in February 2022 and remained there until her death on 13 May 2023. Following her mother’s death, Mrs Z made a formal complaint about several issues in respect of the care home’s actions and care in respect of her mother. It is noted that Mrs Z had raised issues in November 2022 about cleanliness and food issues.
9. Mrs Z complained on 22 May that care home staff accessed Mrs X’s iPad without permission. She alleged they had deleted messages and used it to email Mrs Z’s sister in Australia. Mrs Z complained this was a breach of policy, procedure and privacy.
10. The Care Provider investigated Mrs Z’s complaint and replied on 7 June 2023. It said there was no evidence that any staff member deleted emails from Mrs X’s iPad. It confirmed that an email was sent to Mrs Z’s sister in Australia but this was sent from the care team’s email address and not the iPad. The Care Provider confirmed that with Mrs X’s permission, staff accessed her iPad to retrieve the correct email address for Mrs Z’s sister in order to inform her about Mrs X’s health condition. The Care Provider gave its view that there was no breach of the General Data Protections Regulations (GDPR) or Safeguarding.
11. Mrs Z, dissatisfied with the response, complained again to the Care Provider. In this complaint, Mrs Z raised the following four issues:
• Premises and cleanliness of resident’s room
• Provision of meals
• Poor administration of the Electoral Register
• Ineffective data protection of resident’s and their family representative’s personal information.
12. Mrs Z did not receive a satisfactory response to the issues raised and so continued to correspond with the Care Provider. She provided detailed complaint letters with evidence to support her position.
13. On 5 October, the Chief Executive Officer for the Care Provider responded to Mrs Z’s complaints. He provided a detailed response to each of the four issues raised by Mrs Z as explained below:
• Care home failed to consistently implement smaller portion sizes of soft bite sized meals as promised. This should have happened from December 2022 but did not which meant Mrs X was presented with meals that did not meet her needs.
• Regarding offering food during the last week of Mrs X’s life, the care home’s approach is that it will continue to offer food rather than withhold it until the resident can not tolerate it. Even though Mrs X declined food in the day she did eat some jelly and ice cream in the evening when offered. It said there was nothing to suggest Mrs X was pressurised into eating.
• The Chief Executive confirmed there was no excuse for any room not to be cleaned to a high standard. He also apologised for not responding to Mrs Z’s emails quickly when this was initially raised.
• Regarding the Electoral Register it was noted that there is a process in place for this to be completed and accepted the care home did not follow the process. He confirmed this was followed up with care home staff and all homes would be reminded of their responsibility to ensure residents’ details are up to date as there is a general election pending.
• It was noted that an apology for the previous data protection error when an email was sent without blind copying the email addresses. He said that staff had undertaken GDPR training and attended a training session on the use of the information system which stores residents’ information. It had reviewed the breach against the Information Commissioner Office’s reporting guidelines and determined the risk was not high. He accepted a mistake was made and apologised.
• He also explained that after Mrs Z raised concerns that Mrs X’s care plan was left unattended, a change to the storage policy was introduced and all care plans are now kept in the managers office.
• He said Mrs X’s iPad was accessed with her consent to retrieve an email address and his view was that Mrs X had capacity at that time.
14. Mrs Z was still not satisfied with the response but declined the offer to meet with senior managers of the Care Provider and instead complained to the Ombudsman.

Analysis

15. Mrs Z complains the care provider failed to carry out a safeguarding investigation. When I spoke with Mrs Z, she told me a safeguarding investigation should have been carried out in respect of the care home accessing her mother’s iPad. She did not say her mother had suffered physical harm or neglect but that actions had happened which affected her mother’s material possessions and this was not acceptable.
16. I am satisfied the Care Provider considered Mrs Z’s complaint about the iPad. It accepted that staff had accessed this but said this was done with Mrs X’s consent. To support its position the Care Provider has provided a note, handwritten by Mrs X, asking that her daughter in Australia be informed of her health. The Care Provider maintains that staff only used the iPad to find an email address and did not delete anything.
17. As explained at paragraph four above, the Ombudsman must consider the injustice caused as a result of any alleged fault and must use public money carefully. In this case, the complainant Mrs X, has died which means we are unable to provide any personal remedy. I am also not persuaded that any investigation I could now carry out would provide different evidence about who deleted the emails and so a different outcome could not be achieved.
18. In his response to Mrs Z’s complaint, the Care Provider’s Chief Executive accepted fault in respect of cleaning issues, food provision and data breaches. As well as apologising to Mrs Z, he detailed actions taken to ensure similar faults do not occur in the future. This includes changes in procedures and staff training.
19. I am aware this has been a distressing situation for Mrs Z and that she has spent significant time pursuing these matters. However, I consider the Chief Executive’s response dated October 2023 has provided a suitable explanation and remedy for the faults identified. It would not be appropriate or proportionate for the Ombudsman to investigate further.

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Final decision

20. I will now complete my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman