Summary: Ms X complained the care home delayed taking her sister, Ms Z, to the hospital, where she died the following day. Ms X also has concerns over the information contained within the response to her complaint. The Ombudsman finds fault with the Council’s handling of Ms X’s complaint but not with the care provided by the care home. The Council agreed to the Ombudsman’s recommendations to apologise to Ms X for the delays experienced and provide feedback to the care home about record keeping.

The complaint

1. Ms X complained the care home delayed taking her sister, Ms Z, to the hospital where she died the following day.
2. Ms X has also complained about the care home saying Ms Z’s mood was low because she was told she would not be moving to another town. Ms X says the plan was always to move Ms Z to that town.
3. Ms X disputes the care home offered a doctor’s visit to Ms Z on 26 May 2019.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’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. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Ms X and the Council provided comments on my draft decision. I considered their comments before making my final decision.

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What I found

Standard of care

8. The Care Quality Commission (CQC) Guidance: ‘Essential Standards of Equality and Safety’ says that all independently-regulated health or social care provider services should ensure they meet the regulatory standards set in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and the Care Quality Commission (Registration) Regulations 2009, to ensure that the risk of abuse or neglect is minimised for all adults within their care.
9. The CQC guidance says that:
1. The care and treatment of service users must be appropriate, meet their needs and reflect their preferences. The care and treatment must be provided in a safe way for service users. (regulation 9).
2. The Home must, as far as is reasonably practicable, ensure that service users are able to make decisions about their care or treatment (regulation 17) and obtain their consent (regulation 18).
3. The Home must protect service users against unsafe or inappropriate treatment by keeping accurate records (regulation 20)
10. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is:

‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])

Council Complaints Process

11. The Council must follow the adult social care statutory complaints process when handling complaints about residential care homes.
12. At Stage 1 the Council must acknowledge complaints within three working days and provide a full response within 20 working days.
13. A person can escalate their complaint to Stage 2. At Stage 2 the Council should respond to complaints within 20 working days.

Background

14. Ms Z lived in a care home. In December 2019, Ms X reported to the care home that Ms Z was unwell and asked the care home arranged a doctor to see her. Ms Z’s doctor reported no issues. The hospital admitted Ms Z in January 2020 with pneumonia. The hospital released Ms Z back to the care home in February 2020.
15. Ms Z had a history of taking all needed medication except for one evening nutrition medication. Ms Z regularly took nutrition medication twice per day and attended the hospital twice per week for IV therapy to supplement her nutrition intake. Ms Z confirmed in her care plan she was selective over food but she often ate food provided by the care home.
16. The care home completed a standard review of Ms Z on 14 May 2019 in which it noted Ms Z had started to refuse meals.

What Happened

17. From 19 May 2019, Ms Z began to decline meals again. The care home records noted Ms Z was eating little.
18. Ms Z completed a weigh-in on 21 May 2019 and noted no weight loss. The care home chef discussed Ms Z’s likes and dislikes with her on 23 May 2019 and on 25 May 2019 a nurse gave Ms Z energy drinks because of her declining intake of meals.
19. Ms X told the care home day duty nurse that Ms Z’s voice seemed weak on 26 May 2019 following a conversation with Ms Z. Ms X says she contacted the care home many times on 26 May 2019 to raise concerns about Ms Z.
20. The day duty nurse said Ms Z appeared fine but had a slight temperature. The care home put Ms Z on observation. The care home’s observations of Ms Z on 26 May 2019 said:
• Ms Z had a settled day.
• Ms Z had poor dietary intake but drank quite a lot.
• Ms Z took her medication throughout the day.
• At 16:31 Ms Z chatted with staff, appeared content and had gone back to her bed.
• At 18:09 Ms Z’s temperature appeared a bit high (37.8 degrees) but other observations were within normal range with blood pressure 126/84, pulse 76 and saturation 93%. The nurse noted no concerns other than temperature.
• Ms Z had two drinks from 18:15 to 18:20 and was awake and content.
• Ms X’s son called the care home at 20:30 and raised concerns about Ms Z.
• The night duty nurse took further observations and Ms Z’s temperature remained a bit high at 37.7 degrees. Ms Z’s observations showed a drop in blood pressure to 112/64 and rise in pulse to 116. Ms Z’s saturation levels were lowering rapidly from 79% to 75% over a short time.
• The night duty nurse arranged for an ambulance to take Ms Z to hospital. The night duty nurse told Ms X.
21. Ms Z passed away in hospital on 28 May 2019 from sepsis and pneumonia.
22. Ms X attended the care home on 28 May 2019, raised a complaint and asked for the name of the day duty nurse for 26 May 2019. The deputy manager would not give Ms X the nurse’s name but confirmed the care home would investigate her complaint.
23. The care home provided its response to Ms X’s complaint on 16 June 2019. The care home said:
• Ms Z’s mood had dropped in the days leading up to her hospital admission as a family member told her she was not moving closer to her sister.
• Ms Z’s dietary intake before 26 May 2019 had been poor.
• Staff met and documented all Ms Z’s care needs.
• The care home was satisfied it had provided the correct duty of care.
24. Ms X complained to the Council on 19 August 2019. The Council accepted Ms X’s complaint and promised a response within 15 working days.
25. The Council passed Ms X’s complaint to the Adult Social Care team on 24 September 2019. This team contacted Ms X and asked for further details so it could investigate.
26. Ms X provided the information on 2 October 2019. The Council outlined six points of complaint in a letter to Ms X on 11 October 2019. Ms X called the Council to discuss the complaint points. By 24 October 2019, the Council had confirmed Ms X’s six points of complaint of which points 2 through 6 are relevant to the complaint brought to the Ombudsman. Ms X complained:
1. The day duty nurse did not act on the concerns she raised about Ms Z causing a delay in Ms Z going to hospital.
2. The deputy manager at the care home refused to give her the day duty nurse’s name on 26 May 2019.
3. A nurse told her Ms Z had been unwell for a few days before her going into hospital.
4. The care home promised a complaint response from the manager but instead the deputy manager sent the response.
5. The care home investigation was inaccurate. Ms X disputed:
1. The care home staff offered Ms Z a GP visit on 26 May 2019. Ms X said the care home should have called the GP anyway.
2. The care home staff offered Ms Z was medical attention on 26 May 2019. Ms X said the care home should have called an ambulance anyway.
3. A family member told Ms Z she would not be moving closer to her sister as this was still the plan.
4. The consistency of the day nurse and night nurse’s accounts within the report.
27. The Council provided its Stage 1 response on 21 November 2019. The Council provided a response to each complaint point and did not uphold any point. The Council said:
1. The care home had Ms Z under observation on 26 May 2019. When Ms Z’s saturation and blood pressure started dropping and her pulse rising, the care home called for an ambulance. The Council could not decide if the care home should have called the ambulance sooner.
2. The care home deputy manager could not release the name of the staff member without the consent of the manager,
3. A member of staff said Ms Z told them about a conversation with a family member about not moving to another town. This caused a reduction in Ms Z’s mood causing her not to eat or drink much. This could have been the reduction in health referred to.
4. As the manager was leaving employment at the care home it was not inappropriate for the deputy manager to respond.
5. a) The Council addressed this point in the response to complaint 2.

b) Ms Z had capacity so the care home could not force her to go to hospital. The nurse asked Ms Z and she declined.

c) The conversation about Ms Z not moving appeared to have happened with her niece.

d) There was no contradiction as the saturation levels decreased after the night nurse took over which prompted the call for the ambulance.

28. Ms X escalated her complaint on 25 November 2019. On 6 December 2019, the Council confirmed it would review Ms X’s complaint at Stage 2 within 20 working days.
29. The Council asked for further information from Ms X on 8 January 2020. Ms X advised she was not sure what information the Council needed and asked for the review to continue. The Council again confirmed it would complete the review within 20 working days from 15 January 2020.
30. Ms X chased the Council on 27 February 2020 and 9 March 2020. The Council apologised for the delay and promised a response shortly.
31. On 27 March 2020, the Council advised it had suspended timescales for investigations because of the Covid-19 pandemic but Ms X’s complaint would remain under review.
32. The Council provided its Stage 2 response on 2 July 2020. The Council supported the rationale from the Stage 1 response for complaint points 2, 5 and 6 and maintained these as not upheld.
33. The Council changed the outcome for complaint point 3 to upheld. The Council said while data protection was a consideration, the deputy manager should have directed Ms X to the person in charge to raise these concerns rather than withholding the information.
34. The Council changed the outcome for complaint point 4 to inconclusive. The investigating officer said he had no reason to question Ms X’s statements. But the records from the care home say the nurse was referring to the impact of the call about Ms Z not moving.
35. Ms X brought her complaint to the Ombudsman on 19 August 2020.

Analysis

Provision of Care

36. CQC guidance outlines the care home should have provided Ms Z with appropriate care and treatment while she lived at the home. This care should have reflected Ms Z’s needs and her preferences. The care home needs to keep good records of the care it provides.

Lead up to 26 May 2019

37. Up to 26 May 2019, the care home ensured Ms Z took her required medication, except for an evening nutritional medicine which Ms Z has a long history of refusing.
38. Ms Z began to refuse meals from 19 May 2019 with the care home noting concerns about the low dietary intake. However, the care home provided two nutritional medicines per day, Ms Z attended IV therapy twice per week and the care home tried to engage with Ms Z about her meal preferences. The care home also completed standard reviews which checked Ms Z’s weight.
39. The records for Ms Z’s care leading up to 26 May 2019 do not reference any of the common signs of sepsis and pneumonia. Ms Z also attended hospital twice a week with the last two visits being on 23 May 2019 and 24 May 2019. While these visits were for IV therapy and not check-ups, the hospital did see the need to admit Ms Z to hospital on any visit.
40. Ms Z’s care notes are clear, accurate and show provision of suitable care. I do not find fault with the care home’s provision of care to Ms Z in the lead up to 26 May 2019. I cannot confirm a causal link between this care and Ms Z passing away.

Actions on 26 May 2019

41. Ms X complained the day duty nurse failed to act on her concerns for Ms Z on 26 May 2019.
42. Ms Z’s care notes show the day duty nurse put Ms Z under observation on 26 May 2019. It is correct for a care home to put a resident under observation when they have concerns for their health. The care home noted Ms Z’s temperature was slightly high on 26 May 2019, but other observations did not raise concerns.
43. Ms Z’s care notes also show Ms Z was drinking liquids and following a normal daily routine on 26 May 2019.
44. When Ms Z’s saturation and blood pressure dropped and her pulse rose, the care home arranged for an ambulance. The reason the night duty nurse called for the ambulance rather than the day duty nurse was because Ms Z’s observations only changed after the staff changeover. The last set of observations taken by the day duty nurse were at 18:09 which showed normal levels other than temperature. The next set of observations showed a quick decline.
45. I can see no fault in the day nurse’s decision to not call an ambulance during the day. This was a professional decision they were entitled to make. I do not find fault with when the care home arranged an ambulance for Ms Z.

Offer of Doctors Visit

46. In line with CQC guidance a care home must ensure a resident can make decisions about their care. Such decisions would include whether to have a doctor visit or to go to hospital. CQC guidance does allow care home staff to override a resident where it is not reasonably practicable for a resident to make their own decisions.
47. Ms Z had capacity to decide about her own care. This extends to a doctor visit or going into hospital. Ms Z would need to agree to this. The care home should not readily decide to override a person with capacity’s decision.
48. I have seen no evidence the care home offered Ms Z a visit from the doctor or early admission to hospital.
49. Even if I did conclude the care home did not offer Ms Z a visit from the doctor or early admission to hospital, I cannot draw a direct causal link between this and Ms Z passing away. Ms Z may have declined these offers. The doctor may have reached the same conclusions as in December 2019 and not recommended further action. Or, earlier admission to hospital on the 26 May 2019 may not have prevented Ms Z passing away.

Move Closer to Sister

50. Ms X complained the care home has records saying Ms Z was in a low mood because she was not going to move closer to her sister. Ms X says the plan was always to move Ms Z.
51. Ms Z’s care notes show that she expressed a wish to move on 19 May 2019. The notes do not say whether this would be going ahead.
52. The next note about moving is on 24 May 2019. On this date, the carer noted Ms Z was in a low mood, this was “apparently because she has been told the move is not going to be happening”. This shows the nurse did not tell Ms Z she would not be moving, but the information came from Ms Z. I cannot confirm where Ms Z got this information from.
53. The care records do not show the care home staff confirming or denying that Ms Z would not be moving. I cannot uphold Ms X’s concerns about this part of her complaint.

Complaint Delays

54. Ms X complained to the Council on 19 August 2019. The Council should have provided a Stage 1 response within 20 working days.
55. The Council did not pass Ms X’s complaint to the correct department until 24 September 2019; this was already 26 working days. This delay was avoidable and is fault. The Council explained this delay was caused by the introduction of a new complaints handling system. The Council has resolved the issues with this system preventing future delays of the same nature.
56. The Council worked with Ms X from 24 September 2019 until 24 October 2019 to confirm the correct details of her complaint. I do not consider this a delay in complaint handling. The Council provided Ms X’s Stage 1 response on 21 November 2019. This is within 20 working days.
57. Ms X asked for escalation to Stage 2 on 25 November 2019. The Council did not provide its Stage 2 response until 2 July 2020. The Covid-19 pandemic will undoubtably have impacted the Council’s ability to provide the Stage 2 response sooner.
58. However, the UK only went into lockdown on 16 March 2020 and the Council only confirmed issues with complaint timescales on 27 March 2020.
59. Taking 16 March 2020 as the point in which the Council could have suspended complaint timescales, the Council already had 77 working days up to this point to provide its Stage 2 response. This delay is fault. This fault caused Ms X avoidable distress and frustration at not knowing the outcome of her complaint in what were important matters for Ms X.

Agreed action

60. Within one month of the Ombudsman’s final decision the Council should:
• Provide a reminder to the care home staff about the importance of accurate record keeping.
• Provide an apology in writing to Ms X for the delays in handling her complaint.

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Final decision

61. There was fault by the Council. As the Council has agreed to my recommendations I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman