Summary: Mr X complained on behalf of his father, Mr Y, that there were failings by a care provider commissioned by the Council. We found the care provider failed to prevent Mr Y absconding from the care home, failed to follow his care plan and lost his personal belongings. In recognition of the injustice caused the Council has agreed to apologise to Mr X and make a payment to him.

The complaint

1. Mr X complains on behalf of his father, Mr Y, that Maria Mallaband Care Group Limited (the ‘care provider’) commissioned by the Council to care for him:
• failed to accompany him to hospital on 2 December 2022;
• failed to prevent him absconding from the home;
• failed to provide an adequate standard of care. In particular, failed to ensure he was wearing clean and appropriate clothing and lied to him causing him to display challenging behaviour;
• failed to follow his care plan and DoLS agreements, in particular by using chemical restraint in breach of the Mental Capacity Act instead of reasonable adjustments;
• disregarded and refused to work with family members holding Power of Attorney for health and welfare;
• placed family members under pressure to change DoLS and renounce their role as Power of Attorney for health and welfare; and
• lost his personal items.
2. Mr X says these failings caused him stress and anxiety and he lost confidence in the care provider. He also says he was put to a huge amount of inconvenience in addressing the issues. He also says these failings caused Mr Y stress and anxiety and affected his mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
6. 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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What I have and have not investigated

7. I have investigated matters which took place between March 2022 and March 2023 when Mr X complained to us.

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How I considered this complaint

8. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and all the documents it provided.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC). The 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 fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.

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What I found

Legal and administrative background

Fundamental Standards of Care

11. 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.
12. Regulation 10 requires care providers to treat people with dignity and respect while they are receiving care and treatment.
13. Regulation 12 requires care providers to assess the risks to people’s health and safety during any care or treatment and act to mitigate risks.
14. Providers must do all that is reasonably practicable to mitigate risks. Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities.

Mental Capacity Act 2005

15. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
16. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Deprivation of Liberty Safeguards (DoLS)

17. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
18. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
19. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
20. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
21. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
22. The application for authorisation should be made within 28 days.
23. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the council.
24. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
25. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.

Lasting Power of Attorney

26. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)” which is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
27. There are two types of LPA.
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Key facts

28. Mr Y has dementia. He was admitted to Bowerfield House Care Home (‘the care home’) on a nursing placement in 2020. The placement is commissioned by the Council although the home is situated in Stockport Council’s area. Mr Y needs prompting with personal care and his medication is administered by a trained nurse.
29. Mr Y’s dementia has affected his understanding and short-term memory. However, he has some awareness of his situation which sometimes led to him becoming frustrated and agitated, repeatedly asking staff when he would be allowed home and trying to exit the care home.
30. Mr Y’s son, Mr X, and his daughter, Ms Z, hold power of attorney for Mr Y for both health and welfare decisions and property and finance.
31. A standard DoLs authorisation was in place because Mr Y was unable to leave the care home unaccompanied due to his cognitive impairment.
32. On 14 December 2022 Mr X complained to the care provider that staff failed to escort his father to hospital when he complained of chest pains in early December. He also complained that Mr Y absconded from the home and was found walking in the street. He raised concerns about the standard of care Mr Y received saying he had frequently seen his father wearing the same clothes for a week or more and he appeared to be sleeping in them. His choice of clothes was also inappropriate. Mr X also said Mr Y’s personal items had gone missing including shoes, watches and an iPod.
33. On 19 December the care provider met with Mr X to discuss his concerns.
34. On 5 January 2023 the care provider responded to Mr X’s complaint. He was dissatisfied with the response and escalated his complaint to stage 2.
35. In March the care provider responded to Mr X’s complaint at Stage 2. Mr X remain dissatisfied with the response and complained to us.
36. A meeting was then held between the care provider and Mr X and it was agreed that the care provider would complete a further investigation. This was completed in July 2023 however Mr X remained dissatisfied with the outcome.
37. Mr X has now moved to another care home.

Failure to accompany Mr Y to hospital

38. Mr X says Ms Z received a call from care staff saying they had called an ambulance for Mr Y because he was complaining of chest pain. He says the care provider did not provide an escort to accompany Mr Y to hospital despite being aware of his tendency to abscond. He says this caused the family huge distress due to the weather conditions at the time and thoughts about what could have happened.
39. In its response to Mr X’s complaint, the care provider said it was not its process to send a staff member to hospital because, once a resident was in the care of paramedics and then hospital staff, they were responsible for the resident. It agreed it would have been best practice to provide an escort given Mr Y’s exit seeking behaviours, but said the removal of a staff member from the care home to escort a resident to another care setting must not be to the detriment of other residents. It said discussions were held between the nurse in charge, the on-call manager, paramedics and Ms Z and it was agreed paramedics would support Mr Y until Ms Z was able to attend the hospital. The care provider said it would review its escort policy.
40. In response to my enquiries, the Council said that, by failing to provide an escort, the care provider did not comply with the terms and conditions set out in the placement contract which stated, “staff will be required to stay with the Service User until a Carer can take over. Where no carer is available, the Staff will stay with the Service User until no longer required, e.g. admission to hospital”. It says it was not ideal for the care provider to arrange for a member of the ambulance crew to stay with Mr Y until Ms Z arrived. But, where a care home may be managing the safety of other residents, this may have been their only option. It says the clause in its contract relating to escorts to support hospital admissions has been altered to reflect the need for care homes to balance the risk of sending staff to hospital to act as an escort and ensuring residents at the home have enough staff to support them.
41. The Council has subsequently explained that its process when agreeing an out of borough contract consists of two stages. The first stage is to send a letter setting out some of the basic details required to establish a contractual agreement with the care home. One of the conditions is that the care provider must agree to the Council’s usual terms and conditions. However, the Council accepts that, in this case, the letter was inaccurate and was also sent to the wrong care home. No amended letter was sent because this only came to light following Mr X’s complaint by which time Mr Y had moved to another care home.
42. I find the Council was at fault in failing to send the correct information to the care home. However, this did not cause Mr Y an injustice.
43. The Council says it has now amended its contract for care homes to state that providers must use their ‘best endeavours’ to send escorts in recognition of the fact that this cannot be done where it would affect staffing levels and put other residents in a home at risk.
44. I find that, although it would have been best practice to send an escort with Mr Y, the care provider followed its own policy in deciding not to do so. The decision was made following discussions between the nurse in charge, the manager, paramedics and Ms Z. Having considered the matter, the care provider was entitled to reach this decision in the interests of all residents, so I do not uphold this aspect of Mr X’s complaint.

Failure to prevent Mr Y absconding

45. Mr X says the care provider failed to prevent Mr Y absconding from the home. He says he kept trying to abscond because of lack of stimulation and boredom.
46. Mr Y’s care plan stated that, when Mr Y repeatedly asked to go home, staff should reassure him and encourage him to sit at a safe place away from the exit. It stated exit doors on Mr Y’s floor were key coded. He would press the keypads on the doors but was unable to enter the correct code. The care plan stated staff should ensure the door was locked so Mr Y could not exit.
47. The care provider’s records show that between March and December 2022 the following incidents took place:
• Mr Y went downstairs in the lift and pushed staff who were arriving for the night shift. He was taken back upstairs. Mr X disputes this version of events. He says the lift has had a keypad since his father’s admission to the home and, as he does not know the code, he could not have gone downstairs in the lift;
• Mr Y left the building after being let out by agency staff who thought he was a member of staff. Mr X disputes the care provider’s version of events and questions how a man in his eighties could be mistaken for a member of staff;
• Mr Y left the home during an event and started walking away. A member of staff saw him and brought him back. Staff telephoned Mr X who spoke to Mr Y. A safeguarding alert was raised and the incident was reported to the CQC. The safeguarding alert was closed because appropriate measures were followed;
• Mr Y ran past a staff member when they were opening the door. He was outside the building but the staff member immediately called after him and took him back inside. Mr X was informed;
• the keypad to the door on Mr Y’s floor malfunctioned and he was able to get down to the ground floor. He was settled in the lounge on the ground floor until around 11 pm. The alarm on the ground floor fire door then malfunctioned and, when staff finished dealing with this, they noticed Mr Y was no longer in the lounge. Staff found him walking away from the home having escaped through the fire exit door and brought him back. Mr X disputes this version of events. He says that, when he visited the home shortly afterwards, the fire door was covered in cobwebs and did not look as though it had been opened in some time;
• Mr Y went downstairs in the lift. A nurse went to get something from his car and Mr Y followed him out of the building. A former employee notified the care home that Mr Y was walking in the street. Staff brought him back. Again, Mr X says Mr Y could not have gone downstairs in the lift. He says there are several secure doors to navigate to exit the building and suggests agency staff left these doors open.
48. The Council is satisfied that the care provider acted appropriately following the incidents in December 2022 by informing Stockport Council which led a safeguarding enquiry and completed contract performance monitoring of the home. It fed back the outcome to the Council.
49. In the care provider’s initial response to Mr X’s complaint it said that, following the incidents in December 2022: the fire exits were now checked twice daily at the end of each shift to ensure the alarms were on; the keypad codes had been changed to reduce the risk of Mr Y using the stairs; and a keypad had been fitted to the lift so Mr Y was no longer able to use it. Mr X disputes this saying that a keypad had been in the lift since Mr Y was admitted to the home.
50. There is clearly a conflict of evidence between Mr X’s version of events and that of the care provider. But the fact remains that Mr Y was able to exit the home on several occasions between March and December 2022. I accept Mr Y’s behaviour was challenging. However, the failure to prevent him exiting the home was fault and a potential breach of Regulation 12 of the Fundamental Standards as this put Mr Y’s health and safety at risk. It also caused distress and anxiety to Mr X.

Failure to ensure Mr Y was wearing clean and appropriate clothing

51. Mr X says Mr Y needed prompts to attend to hygiene needs and change his clothes. He would forget when he last changed his clothes and did not always recognise when they needed changing. He also sometimes slept in his clothes.
52. This issue was not addressed in the care provider’s response to Mr X’s complaint except to explain that a shower sheet had been introduced so staff could log whether Mr X had been prompted to take a shower and whether he had complied.
53. The Council says concerns relating to this matter were not shared with it at the time.
54. I have seen no evidence in the daily care records to establish whether Mr Y was prompted to change his clothes or wear appropriate clothing. So, I am unable to reach a conclusion on this issue.

Failure to follow Mr Y’s care plan and DoLS authorisations

Lying to Mr Y

55. Mr X says staff would lie to Mr Y, telling him he was “going home tomorrow”. He says this caused him to display challenging behaviour as he knew this was untrue.
56. The DoLs authorisation in place between March and October 2022 contained no conditions. The officer completing the new DoLs authorisation in October 2022 found that, when Mr Y was agitated, some staff would tell him in response to his questions that he would go home the following day. The officer found this was not a proportionate or appropriate response to Mr Y’s distress and agitation. Conditions were added to the DoLs authorisation including that the care provider must ensure the practice of telling Mr Y he was going home tomorrow as a means of controlling his agitation and distress stopped immediately.
57. There are examples in the care provider’s notes of staff telling Mr Y he would be going home the following day:
• in March 2022 the notes record that Mr Y was trying to get out and asking when he could go home. Staff members recorded that they told him “It’s okay the doctor is coming to sign you off tomorrow”; and
• in December 2022 when Mr Y followed the nurse out of the building and staff went to fetch him, he agreed to return when they told him they would call Mr X to pick him up the following morning.
58. At the time of the incident in December 2022, the DoLs authorisation in place was subject to a condition that staff should not tell Mr Y that he was “going home tomorrow” as a means of controlling his agitation and distress. Staff telling Mr Y that they would call Mr X to collect him the following day was a breach of this condition. It was also in breach of Mr Y’s care plan.
59. Although the DoLs authorisation in place at the time of the incident in March 2022 had no conditions imposed, it was fault for staff to lie to Mr Y. I understand Mr Y’s behaviour could be challenging, but making statements to him which were untrue is not in line with Regulation 10 of the Fundamental Standards which says service users must be treated with dignity and respect.
60. The failure to tell Mr Y the truth may have contributed towards his agitation. This also caused Mr X the injustice of not knowing the degree to which the care provider’s actions caused Mr Y distress. Mr X says this also caused conflict between himself and his father who often blamed him for putting him in the home and not taking him home.
61. The Council says concerns relating to Mr Y’s challenging behaviour were discussed at a multidisciplinary team (MDT) meeting in January 2023 and the provider agreed to remind staff not to tell Mr Y that he was returning home as this may cause him agitation. While this goes some way towards resolving the matter, I have recommended a remedy for the injustice caused below.

Using chemical restraint in breach of the Mental Capacity Act instead of reasonable adjustments

62. The Mental Capacity Act 2005 requires that a person’s care is the ‘least restrictive’ possible. Any restriction in place must be:
• proportionate to the need to keep the person safe and
• necessary having previously attempted all other lesser options.
63. Mr Y was prescribed Lorazepam for “episodes of exacerbated agitation and anxiety” from 2021.
64. Mr Y’s care plan dated February 2022 stated that when Mr Y became anxious and agitated, staff must try to engage him in conversation or watching TV as this would sometimes settle him. The care plan stated that Lorazepam could be used by registered nurses when Mr Y became very agitated.
65. In February 2022 Mr X became aware the care provider was giving Lorazapam to Mr Y. He asked the care provider not to give Mr Y Lorazepam before speaking to him or Ms Z as they may be able to settle Mr Y by talking to him. He said staff could telephone him at any time so he could speak to his father. He felt this was a more proportionate response to Mr Y’s distress than giving him medication. Mr X says the care provider did not comply with this and continued to administer Lorazepam instead of telephoning him.
66. Mr Y’s care plan was updated in July 2022 to reflect Mr X’s wishes. It said Lorazepam was only to be used if Mr X gave permission and stated “this has been discussed with GP”.
67. The DoLs authorisation issued in October 2022 imposed conditions that the care provider must contact Mr X or Ms Z before administering Lorazepam to manage Mr Y’s agitation as intervention by a family member may successfully end his agitation and anxiety in a less restrictive manner than medication. The report stated this already appeared in Mr Y’s care plan but had recently not been adhered to.
68. The Council says Lorazepam was administered three times since Mr Y’s admission in 2020. I have not considered the care provider’s records before March 2022. The records I have seen show Lorazepam was administered on 20 March, 29 March, 3 April, 24 June and 27 September 2022 without first contacting Mr X or Ms Z. This failure to adhere to Mr Y’s care plan was fault and meant he was given medication when less restrictive means may have reduced his anxiety. This also caused Mr X and Ms Z distress.
69. The Council says the use of Lorazepam was discussed at the MDT meeting in January 2023. It was agreed that Mr Y’s care plan would be reviewed and the care provider would add further detail relating to Mr Y’s psychological well-being. It was also agreed that the care provider would:
• provide a range of meaningful activity to prevent Mr Y becoming bored; and
• remind staff about the least restrictive approach to de-escalating Mr Y’s behaviour when he was showing signs of anxiety and agitation.
70. However, it was also agreed that, if Mr Y continued to display agitated behaviour after speaking to Mr X or Ms Z, the nurse may administer Lorazepam. If the medication was administered, the family must be informed.
71. While this goes some way towards resolving the situation, I have recommended a remedy for the injustice caused below.

The care provider’s relationship with family members

72. Mr X says the care provider disregarded the DoLs authorisations and powers of attorney and put family members under pressure to change DoLs authorisations and renounce their role as attorney.
73. In December 2022 the care provider met with Mr X to discuss his complaint. It said that, as a nursing home provider, it should be able to make a clinical decision whether to administer Lorazepam without having to obtain authorisation from family members.
74. In its response to Mr X’s complaint, the care provider said there had been a breakdown of communication, trust and confidence. It said the DoLs authorisation stated it must contact Mr X or Ms Z before administering Lorazepam to manage agitation and it must only be given with their consent. However, because of the breakdown of relationships and trust, the care provider felt it needed to be able to assess Mr Y’s needs and any risk in his presentation and decide whether to administer Lorazepam without consulting the family.
75. The Council says that during the MDT meeting in January 2023 there were conflicting views between Mr X and the care provider about responding to Mr Y’s behavioural needs. Following the meeting, Mr X raised concerns that the care provider was only interested in changing the DoLs and trying to persuade him that his rights as attorney meant nothing and they could medicate regardless of his instructions. Mr X was advised to consider alternative care homes.
76. It is clear there was a breakdown of trust between Mr X and the care provider and they had conflicting views about the administration of Lorazepam. But I have seen no evidence that the care provider put family members under pressure to change DoLs authorisations or renounce their role as attorney.

Loss of Mr Y’s personal items

77. In its initial response to Mr X’s complaint, the care provider said a possessions inventory was not completed on admission and this would be done as soon as possible. It said it would not be held accountable for the loss of expensive items and referred to its contract which stated it did not accept responsibility for loss or damage to residents’ personal possessions unless damage was caused by staff. It recommended a full search of the home be carried out for the missing items.
78. In its stage 2 response in March 2023 the care provider said it had been unable to establish the whereabouts of Mr Y’s lost items. It asked Mr X to provide an approximate cost of the lost items and it would reimburse them.
79. Mr X responded confirming the missing items and the total cost on 9 March 2023. But the care provider did not reimburse Mr Y.
80. The care provider’s final response in late July 2023 said the issue of the missing items would be discussed and lessons learnt, and it would reimburse the cost of the items.
81. In response to my enquiries, the Council said the care provider has now reimbursed Mr Y for the lost items and paid him an additional £500.
82. I find the care provider was at fault in failing to complete a possessions inventory at the outset. It was also at fault in that it delayed in reimbursing Mr Y for the cost of the lost items as agreed in March 2023. However, I consider the care provider has offered a satisfactory remedy for the injustice caused.

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Agreed action

83. I have found fault causing injustice. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
84. I am satisfied that the care provider has provided an adequate remedy for the distress its failings caused Mr Y. Our guidance on remedies states that we will normally recommend a symbolic payment of up to £500 for distress. The care provider has already paid this amount to Mr Y. So, I do not consider further recommendations are appropriate.
85. However, I consider the Council should provide a remedy for the distress Mr X suffered because of the care provider’s failings.
86. The Council has agreed that, within one month, it will:
• send a written apology to Mr X for the failures identified in this statement;
• pay Mr X £350 in recognition of the distress caused; and
• send a copy of the final decision statement to Stockport Council.
87. The Council should provide us with evidence it has complied with the above actions.

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Final decision

88. I find the Council was at fault because the care provider failed to prevent Mr Y absconding from the care home, lied to him, failed to follow his care plan and DoLS authorisations by administering medication without first telephoning Mr X, failed to complete a possessions inventory and lost Mr Y’s personal belongings.
89. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman