Summary: There is no evidence the care provider failed to provide a good standard of care appropriate to the late Mrs X’s needs and therefore no reason why Mr A should not pay the full notice period.

The complaint

1. Mr A (as I shall call the complainant) complains that the care provider failed to give a good standard of care to his mother. In particular he complains that the care provider left his mother in bed all day instead of encouraging her to sit out, did not persuade her to join in activities, left uneaten food in her room and left her room dirty. He also complains that the care provider has pursued him for full payment of four weeks’ notice when he says he had to move his mother from the home for her own good.

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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)

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How I considered this complaint

3. I considered the information provided to me by the care provider and by Mr A. Both parties now have the opportunity to comment on this draft statement before I reach a final decision.

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What I found

Relevant law and guidance

4. 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.
5. Regulation 9 says the care and treatment of service users must be appropriate, meet their needs, and reflect their preferences.
6. Regulation 10 says service users must be treated with dignity and respect.
7. Regulation 11 says care and treatment of service users must only be provided with the consent of the relevant person.
8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

9. Mrs X was admitted to the care home on a nursing placement in September 2022. She had fallen at home in March 2022 and been discovered after she had lain on the floor for some time. Although she had been in an acute and then a rehabilitation hospital, she remained unable to weight-bear when she entered the care home.
10. Mrs X’s care plan in the home noted that Mrs X had not been compliant with rehabilitation while she was in hospital and her mobility had deteriorated further. It described her as being unable to sit out of bed in a chair as she found this too painful and asked to be returned to bed. It said she found using a wheelchair very painful and needed painkillers for any transfers carried out by wheelchair.
11. Mr A says that his mother had been able to tolerate sitting out for 4 hours while in hospital. He has provided photographs of Mrs X sitting in a chair, and also an email from the social care team which he says refers to Mrs X as able to sit out for 4 hours. The email of 25 July 2022 (a response to an email from Mr A) says, “Great news that (Mrs X) is sitting out and tolerating 4 hours”. However, the social care report from the rehabilitation hospital records the Occupational Therapist as saying “(Mrs X’s) sitting out tolerance is poor, she is not able to manage 4 hours which she would need to do in order to be able to get out of bed at home”.
12. Mrs X had a diagnosis of dementia. The hospital discharge summary described her as having capacity to make day to day choices, although Mr A disputes that she was able to do this. Her ‘activities and socialising’ care plan says “She does not wish to leave her room to go and do activities elsewhere in the home as she is unable to sit in her chair without pain, analgesia has not helped with this activity”. The plan was for the activities co-ordinator to spend time with Mrs X in her room if she did not want to join other residents.
13. On 6 April 2023 Mr A emailed the home manager giving 4 weeks’ notice of his intention to move Mrs X to a different home. His email concluded “I thank you for the care my mum has received during her time at Sunningdale Nursing Home”. Mrs X moved to another home on 19 April. Mr A paid the care provider up to 30 April. Mr A says he kept this email short and polite because he was concerned about potential repercussions during the notice period.
14. The care provider issued an invoice to Mr A for £496 which was the remainder of the 4 weeks’ notice period.
15. Mr A complained to the care provider in August. He said he thought the care provider had failed to provide the standard of care expected under the contract and as a result he had had to move Mrs X and had incurred double fees for April. He said he had been assured when she was admitted to the care home that she would take part in a range of activities, which implied she would be dressed and socialising with other residents. He says as far as he was aware she rarely left her bed and was frequently on her own. He said the room was dirty, the food was poor and on one occasion she had been hospitalised for constipation which he put down to the poor diet and lack of activity. He said he thought the £496 should be waived as a result.
16. The director of care responded. She said that although activities were offered for all residents who wished to sit in the lounge, Mrs X had declined all offers to go into the lounge. She said Mrs X had been offered activities in her room regularly. She said the records showed Mrs X had a normal diet and her hospital admission was not due to constipation but to a suspected bowel obstruction.
17. In relation to the cleanliness of Mrs X’s room, she said the records showed the room was cleaned every day and deep-cleaned at least once a week. She refuted his suggestion that the room had not been cleaned for two weeks, as she said he had not visited frequently enough to be able to make that observation. Mr A says this calls into question his honesty. He says he did not take photographs of the room so has no evidence to show; he says he also sometimes forgot to sign the visitor’s book when he was at the home so the records would not show the frequency of his visits. He adds that Mrs X was “isolated and deeply depressed” while she was in the care home, and he found it difficult to go and see her. He says when she moved to the next home he visited every week.
18. Mrs X died in June 2023.
19. Mr A complained to the Ombudsman. He said it was not the case that Mrs X had not been able to sit in a chair (he said the emails from the social care team prove this) but the care provider left her in bed. He said the care provider was still pursuing him for the remainder of the notice period.
20. The care provider says that although Mrs X had initially wanted to go home from hospital, she needed to be able to sit out independently in a chair for up to four hours to receive a package of support at home (unless she stayed in bed) and she would not do so. Mr A says in fact the council was organising the equipment necessary to support Mrs X at home (the email from the social care team confirms that a care package was being arranged) but he became concerned that carers would be unable to reach her in bad weather, and suggested she should go into a care home instead.
21. The care provider says Mrs X was very frail when she was admitted to the home, was transferred by hoist and nursed in bed. She found sitting in a chair very uncomfortable and preferred to be in bed. The care provider says Mrs X was able to make that decision herself.
22. The care provider says Mrs X was admitted to hospital because the Approved Nurse Practitioner who saw her was concerned in case she had a bowel obstruction (and not because she was constipated). The care provider says the ANP acted promptly to ensure Mrs X received appropriate treatment.
23. Finally the care provider says Mr A did not make any complaints during his mother’s stay at the home. She says Mr A’s visits were not sufficiently frequent for him to have made the complaints he had about poor cleanliness of the room, food left out and lack of activity. Mr A says his wife also observed the poor standards of cleanliness at the home.

Analysis

24. There is no evidence to suggest the care provider was not acting in accordance with Mrs X’s capacitated wishes in nursing her in bed. The care plans supplied by the care provider are clear about Mrs X’s wishes: “(Mrs X) cannot sit out as she finds sitting in a chair too painful and cannot with comfort. (Mrs X) becomes very distressed and asks to be returned to her bed”.
25. If in this instance the care provider had acted otherwise, when Mrs X had made her preferences clear, it would have been failing to treat her with dignity and with her consent.
26. I have noted Mr A’s view that the email from the social care team confirms that Mrs X could tolerate sitting in a chair for 4 hours. However, that email is a repetition of something the social worker has been told, not confirmation of a fact. The evidence from the rehabilitation hospital is that Mrs X was not able to tolerate sitting out in a chair for 4 hours.
27. There is no reason why the remainder of the notice period should be waived.

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Final decision

28. I have completed this investigation. I do not find that the actions of the care provider caused injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman