Summary: We uphold Ms Y’s complaint about the care and treatment of her sister, Ms X. We found fault by the Care Home in the care it provided to Ms X’s and its record keeping. We also found fault in the way the Mental Health Trust communicated with Ms Y. This meant Ms X did not always receive the care she was entitled to. Ms Y has also been caused distress, frustration and uncertainty. We recommend the Care Home and the Mental Health Trust apologise to Ms Y. The Care Home will also pay Ms Y £200.

The complaint

1. Ms Y complains about the care provided to her sister, Ms X, by Hugh Myddelton House Care Home (the Care Home) from July 2021 to December 2021. Ms X’s placement was funded by London Borough of Hackney (the Council) via Section 117 funding, with additional 1:1 support funded by North Central London Integrated Care Board (the ICB).
2. Specifically, she complains that the Care Home failed to:
• appropriately encourage Ms X to move around
• properly manage Ms X’s continence, specifically relying on continence products rather than supporting her to use the toilet
• recognise she held Lasting Power of Attorney (LPA) for Health and Welfare for Ms X and was her essential care giver. This meant the Care Home did not properly involve her in care decisions and unfairly limited her visits
• provide the full 24 hour 1:1 care to which Ms X was entitled
• provide Ms X with a range of suitable and stimulating activities; and
• failed to properly handle Ms Y’s complaint, including the way a meeting to discuss her concerns was arranged.
3. Ms Y also complains about her sister’s mental health care by East London NHS Foundation Trust (the Trust) and Barnet, Enfield and Haringey Mental Health NHS Trust (the Mental Health Trust).
4. Specifically, she complains that
• the mental health teams failed to manage and monitor Ms X’s medication appropriately. This led to her becoming over sedated.
• an Occupational Therapist (OT) from the Mental Health Trust failed to properly assess Ms X’s ability to climb stairs. She is also unhappy with the handling of best interests decisions surrounding this point.
5. As a result, Ms Y says Ms X did not receive an appropriate standard of care. Ms Y says she has been deeply distressed by her sister’s poor care and has been prescribed antidepressants.
6. Ms Y is seeking an acknowledgement of fault and for improvements to be made so that people without capacity do not go through the same experience. She would also like a full or partial refund of the top up fees.

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The Ombudsmen’s role and powers

7. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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).
8. If it has, they 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.
9. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their 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 discussed the complaint with Ms Y. I reviewed information provided by the Council, the Care Home, the ICB and both Trusts including the responses to my enquiry questions, Ms Y’s mental health records and the Care Home’s daily notes. In addition, I took account of the relevant guidance and legislation. I have carefully considered all the written and oral evidence submitted to us, even if we do not mention specific pieces of evidence within the decision statement.
11. I shared this draft decision with Ms Y, the Council, the Care Home, the ICB and both Trusts and they had the opportunity to comment. I carefully considered the responses I received.

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What I found

Key legislation and guidance

Section 117 Aftercare

12. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). This is known as section 117 aftercare.

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

13. These Regulations set out the fundamental standards below which care should never fall. The Care Quality Commission (CQC) provides guidance for service providers on how to meet these Regulations.
14. Regulation 17 relates to good governance. Specifically, Regulation 17(2)(c) states care providers must “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provider”.
15. The CQC guidance for this section explains that “records relating to the care and treatment of each person must be kept and fit for purpose.”
16. The guidance goes on to say that records should be “complete, legible, indelible, accurate and up to date, with no undue delays in adding and filing information, as far as is reasonable.” In addition, records must “include an accurate record of all decisions taken in relation to care and treatment and make reference to discussions with people who use the service, their carers and those acting lawfully on their behalf.”

Government ‘Guidance on care home visiting’

17. The government issued guidance on visiting care homes during the COVID-19 pandemic was frequently updated due to the continuously changing situation. The guidance was updated five times during the period of the events complained about. The extracts below are from the policy versions which were relevant during July 2021 to December 2021.
• ‘Each care home is unique in its physical environment and facilities, and the needs and wishes of its residents. As such, care home managers are best placed to develop their own policies (in consultation with residents and their relatives) to ensure that the visits described in the guidance are provided in the best way for individual residents, their loved ones and care home staff.
• Care home managers should feel empowered to exercise their judgement when developing practical arrangements or advice to put this guidance into practice so that visiting can take place smoothly and comfortably for everyone in the care home.
• Providers are best placed to design individual visiting arrangement that take account of the needs of their residents and what is possible within the layout and facilities within the home.
18. Essential care givers
• Every care home resident can choose to nominate an essential care giver who may visit the home to attend to essential care needs. The essential care giver should be enabled to visit in all circumstances, including if the care home is in an outbreak…
• Each resident will be different and the exact arrangements will need to be agreed between the care home, the resident and their family…This should follow an individualised assessment of the resident’s needs.
• These visitors are a central part of delivering the appropriate care and support to a resident, and as such play a role alongside professional members of the care home staff. Additionally, because they will have closer physical contact with the resident and may spend longer in and around the care home, including areas other visitors do not enter, it is important that they take further steps to reduce the risks of infection.
• The care home and visitor should also agree any other relevant arrangements – for example, when and how often the visitor will come to the home, and communal areas, such as staff rest areas, that the visitor should not enter. It is a good idea that these sorts of arrangements…are written down and agreed between the care home manager and the visitor.’

What happened

19. Ms X had been living with her sister, Ms Y, since 2017. Ms X had a diagnosis of early onset dementia in Alzheimer’s disease along with other medical conditions including kyphosis (bent neck). Ms X’s dementia affected her communication and mental capacity to make certain decisions for herself. Ms Y supported her sister as her main carer and Health and Welfare attorney.
20. In September 2019, Ms Y was detained under Section 2 of the Mental Health Act 1983 (the Mental Health Act) following a dementia-related decline in her mental health. Ms X remained in hospital under Section 3 of the Mental Health Act for a further five months.
21. In February 2020, Ms X was discharged to Hugh Myddelton Care Home (the Care Home). Her placement was provided under section 117 aftercare, for which the Council and the ICB were jointly responsible. Shortly after Ms X moved to the Care Home, the COVID-19 lockdowns began.
22. The Care Home raised concerns that Ms X was agitated, restless and engaging in risky behaviours such as moving heavy furniture and touching electrical equipment. Ms X enjoyed physical touch but could have a strong grip. She was also a high falls risk due to her cognitive impairment, dementia and bent neck.
23. In June 2020, extra 1:1 care was put in place to support Ms X’s increased physical and mental health needs. This 1:1 care was provided by the Care Home’s existing staff on a rota basis. The 1:1 care was initially funded by the Council and later by the ICB.
24. In July 2021, a social care review found Ms X to be settled. Ms Y raised concerns that Ms X could be over sedated and asked for a medication review. Ms Y had raised similar concerns previously, with Ms X’s medication last being reviewed in April 2021.
25. In September 2021, the Mental Health Trust’s Care Home Assessment Team (CHAT) considered Ms X’s concerns. A dementia specialist Occupational Therapist (the OT) from the team decided there were no grounds to suggest that a medication review was necessary, as Ms Y was settled on her current medication regime. He agreed to review Ms Y’s medication in January 2022.
26. Ms Y had raised multiple complaints about the Care Home in previous months. In September 2021, Ms Y met with the Care Home managers to discuss her concerns. Ms Y wanted to help Ms X to practice climbing stairs so that Ms X could stay with her for Christmas. The Care Home did not think it was safe for Ms X to climb stairs. It was agreed to review Ms X’s care plan and make a referral for a professional opinion. Ms Y also complained that she had not been allocated as Ms X’s essential care giver, despite previous requests.
27. In late September 2021, the OT from the Mental Health Trust’s CHAT team considered a request to assess Ms X. He decided that climbing stairs was not in Ms X’s best interests and decided not to carry out the assessment.
28. In November 2021, a further review meeting took place. The relationship between Ms Y and the Care Home had broken down. Ms Y indicated that she wished Ms X to move to a different care home.
29. Following the meeting, the Care Home served notice on Ms X’s placement. On 15 December 2021, Ms X moved to another care home.
30. In 2023, Ms X moved back in with Ms Y. Ms X died in June 2023.
31. In April 2023, responsibility for the CHAT team moved from the MH Trust to a different NHS Trust.

Analysis

Care provided by the Care Home

Assisting Ms X to move

32. Ms Y complains that the Care Home failed to appropriately encourage Ms X to move around the premises.
33. I have reviewed the daily care records for July to December 2021, to take a general overview of Ms X’s mobility. From the records, I have seen evidence that Ms X regularly moved between her bedroom, the lounge and, when the weather was suitable, the garden. Ms X is recorded as walking around the Care Home for periods most days. Ms X also had access to, and would sometimes choose to participate in, various group exercise classes.
34. I have not seen any evidence that Ms X required any specific encouragement to move and appeared to regularly walk around of her own choice. From the records I have seen, the 1:1 staff would supervise Ms X to ensure she remained safe while walking. As such, I have not found fault on this point.
35. There was a disagreement between Ms Y and the Care Home about whether it was appropriate for Ms X to climb stairs. I have addressed this separately.

Continence management

36. Ms Y complains that the Care Home relied too much on continence pads instead of assisting Ms X to use the toilet.
37. I have reviewed Ms X’s daily care records, including the available 1:1 notes and her fluid charts for July to December 2021. These documents record when Ms X’s continence pads were changed and when she was taken to the toilet.
38. Ms X’s care plans notes that she could be doubly incontinent and wore pads as she was not always aware that she needed the toilet. However, it also noted that Ms X sometimes did not like using her pad. The care plan stated Ms X was therefore at risk of urinary tract infections and constipation, which could be reduced by assisting her to the toilet.
39. Specifically, Ms X’s care plan states “Ms X would like to be supported to use the toilet when she gets up, before meals and 1.5 hrs after meals. Ms X is unaware of her need to use the toilet, but can become fidgety, needs assistance of 1-2 people. Wears pads day and night. Resistant to support, needs guiding.” Ms X’s care plan was marked as reviewed monthly during the period complained about, without any changes regarding her toileting needs.
40. Having reviewed the daily care records, I have found that Ms X’s toileting support was inconsistent. There were occasions where Ms X was recorded as being taken to the toilet, however this varied from 2-3 times a day to only a few times a week. There were a significant number of days where Ms X was not recorded as having been taken to the toilet at all, with her continence care being met exclusively through pad changes.
41. I have not seen evidence to confirm that Ms X’s continence needs had changed, meaning she was less able to use the toilet. However, if this was the case, then her care plan was not updated to reflect this.
42. Based on the evidence I have seen, I have found that the Care Home did not act in line with Ms X’s care plan in regards to her continence care. This is fault.
43. As a result, Ms X did not receive the care she needed. This has caused Ms Y distress and uncertainty about the standard of care being provided to Ms X.

Provision of 1:1 care

44. Ms Y complains Ms X did not always receive the full 24 hours a day 1:1 care she was entitled to. Ms X says there were occasions when no 1:1 staff member was present and that care worker breaks were not always covered.
45. The ICB has confirmed that it would expect Ms X to be supervised 24 hrs a day, with a 1:1 care worker, including overnight with no breaks in the support.
46. I have reviewed the daily care records. From the evidence I have seen for July 2021 to September 2021, there were regular hourly entries completed by the 1:1 care worker for each day, with no obvious gaps. The Care Home told me that it strongly refutes any suggestion that the full 1:1 care was not provided and confirmed that all breaks were covered by colleagues. The Care Home explained that Ms Y requested privacy when she was visiting Ms X, therefore the 1:1 care worker would not be with Ms X while Ms Y was visiting. The Care Home said 1:1 care was still available for Ms X during this time. Ms Y disputes she requested privacy while visiting.
47. I acknowledge Ms Y’s recollections of times where she says the 1:1 care worker was not present.
48. When investigating complaints, if there is a conflict of evidence, the Ombudsman may 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.
49. The hourly 1:1 records for July to September 2021 consistently show someone monitoring Ms X round the clock, with records being updated without gaps. I have seen nothing to suggest that she was not receiving her 1:1 care at this time. Therefore, I have found it is likely, on the balance of probabilities, that Ms X did receive the 24 hour 1:1 care that she was entitled to during this period. I have not found fault on this point.
50. Ms Y provided some specific dates in November 2021 for when she says the 1:1 carer was not present. Unfortunately, the Care Home has not been able to locate the 1:1 wellbeing records for October to December 2021. I have seen other general records for this period, however the hourly records in relation to 1:1 care are missing. Therefore, I have not been able to check these specific dates, or to review the hourly records for Ms X during these three months.
51. While I am satisfied that Ms X was likely receiving her 1:1 care consistently through July to September 2021, I have not seen sufficient evidence to be assured of this during October to December 2021. Given the content of the records for the previous 3 months, it seems likely that Ms X’s 1:1 care would have continued to be provided. However, without evidence for October to December 2021 to confirm this, I have not been able to make a finding for this period.
52. The Care Home has explained that a wasp infestation caused the loss of some archived data, although it cannot confirm whether this is the reason for Ms X’s missing records. I have found fault with the Care Home’s record keeping, as it has not been able to confirm whether Ms X’s records were within the destroyed box and therefore cannot confirm this is the reason it is unable to locate the records in question. The Care Home’s record keeping was not in line with the standard required by Regulation 17 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 for good governance (see above). This has caused Ms Y further frustration and uncertainty about Ms X’s 1:1 during October to December 2021.

Activities

53. Ms Y complains that the Care Home failed to regularly engage Ms X in a range of suitable and stimulating activities. Ms Y raised complaints about specific activities. I have not addressed all of these in detail. Instead, I have reviewed the records and taken a general overview of whether Ms X had access to varied and regular activities.
54. The Care Home told me that Ms X had access to a wide range of activities including live entertainers, exercise classes, musical activities and crafts. The Care Home said that Ms X would sometimes engage well with the activities, sometimes she would only engage for a few moments and then become distressed and walk away.
55. I have reviewed the Care Home records, including the daily progress notes, the 1:1 care records and Ms X’s specific activity log. The record keeping is variable. Some occasions note individual activities, such as Ms X having a manicure and a hand massage. Other records just note “activity” on the hourly record, without any specific detail of what Ms X was doing.
56. Ms X’s records clearly state her preferences for activities. It was recorded that Ms X had access to a range of activities provided for all the residents, such as outings, seasonal parties, visiting entertainment, exercise classes, pet therapy visits and musical activities. This is demonstrated by an activity log which includes photographs of Ms X participating in such events. Ms X also appeared to regularly engage with the Care Home’s ‘magic table’ games and fidget mats. Ms Y also regularly took Ms X out for a walks.
57. The records around Ms X’s individual activities are less consistent. There are references to Ms X enjoying pampering, engaging with her robot cat, drinking hot chocolate and listening to her preferred music. There are also times when there are gaps between days when activities happened or, as noted above, references to an activity but with no detail of what that was.
58. Again, I have been able to review the 1:1 hourly records for July to September 2021, which gave some information regarding Ms X’s activities. However, due to the missing records, I have not been able to review the 1:1 records for October to December 2021. This has impacted on my ability to investigate this point.
59. The record keeping is inconsistent at times and the missing records are unhelpful. However, I had access to other information about activities beyond the 1:1 hourly records which fills in some of the gaps.
60. From the records I have seen, Ms X had access to a range of activities, both as a group and individually. That said, there appears to have been some missed opportunities for the 1:1 care to have provided more regular individual activities for Ms X. While this could have been better, I am not persuaded it was so poor as to amount to fault. On the balance of probabilities, I have found that Ms X was generally provided with sufficient activities.
61. Again, the Care Home’s record keeping is not in line with standard required by Regulation 17(2)(c) for good governance, which notes that records should be “completed, legible, indelible, accurate and up to date”. This has caused Ms Y frustration and uncertainty.

Involving Ms Y

62. Ms Y complains that the Care Home failed to properly involve her in decisions as Ms X’s Health and Welfare attorney. She also says the Care Home failed to formally recognise her as Ms X’s essential care giver, which would have given her additional visiting rights.
63. In response to my enquiries, the Care Home said Ms Y was fully involved with decisions, although acknowledged there was not always agreement between Ms Y and the Care Home.
64. Having reviewed the Care Home’s records, Ms Y is recorded as having been involved and consulted as part of most key decisions, including care plans and reviews, risk assessments, best interests decisions and multidisciplinary meetings. Ms Y disputes this. There are records of Ms Y being phoned and updated by the Care Home. The records also clearly state how important Ms Y and her relationship was to Ms X. I acknowledge that Ms Y does not feel this was the case. However, on the balance of probabilities, I have found that Ms Y was consulted on most decisions, although there were disagreements around some decisions.
65. Ms Y says she wanted “the best” standard of care for her sister. Ms Y strived to provide a very high standard of care for Ms X when they lived together and wished this to continue in the Care Home. This is understandable. However, the Care Home was unlikely to be able, and would not be expected to, meet the same standard of care that Ms Y provided, particularly when the Care Home was facing unprecedented pressures due to the COVID-19 pandemic. This difference in expectations appears to have unfortunately contributed to the breakdown of the relationship between Ms Y and the Care Home.
66. There is an occasion where Ms Y was not properly involved. This is in relation to the best interests decision taken regarding Ms X’s use of stairs. I will address this separately.

Essential Care Giver

67. Ms Y complains that the Care Home failed to recognise her as Ms X’s essential care giver. Ms Y says this was important as it would have allowed her wider access to areas within the Care Home, and provided assurance that she would be able to continue visiting Ms X in the event of another lockdown.
68. As mentioned above, the government’s visiting guidance was constantly updated throughout the COVID-19 pandemic. It was updated five times during the period complained about, although the information on essential care givers remained mostly consistent.
69. The government’s ‘Guidance on care home visiting’ was not prescriptive and gave care home managers the ability to develop their own visiting policies, based on what was best for each individual care home.
70. I have reviewed ‘Barchester’s Temporary Visitors Policy – During the COVID-19 pandemic’, which was also regularly updated, with the October 2021 version being the most relevant to this complaint. This policy includes
• ‘Every care home resident can choose to nominate an essential care giver who should be able to visit in most circumstances, including if the care home has an outbreak.
• All services must complete a ‘capacity tracker’ on a daily basis.
• Every visitor must have a booked and planned visit.
• Visiting should be offered 7 days a week and should not be time limited for routine indoor visits…Services are permitted to increase the frequency and length of visits as long as they can ensure visiting remains fair for each resident and their loved one. Visiting times and numbers of visitors should be allocated in the booking system.
• Booking process – each service will need to manage fairness of visits.’
71. Both the government guidance and the Care Home’s own policy recognises that residents have the right to choose an essential care giver. While various visiting risk assessments were carried out for Ms X, I have not seen any evidence that an essential care giver assessment or proper conversation about this was carried out with Ms Y. The failure to properly consider Ms Y’s request to be an essential care giver is fault. Some of the Care Home’s communication with Ms Y about her concerns also contained out of date information from previous guidance.
72. I note that, during a meeting with Ms Y, the Care Home accepted a lack of understanding around the essential care giver provision and apologised to her for its handling of the matter.
73. Ms Y complains that, had she been allocated essential care giver status, then she would have been able to access other communal areas within the care home such as the lounge and the café. Ms Y complains that other visitors were allowed to access these areas, but she was not.
74. The government visiting guidance does not stipulate that an essential care giver is to have access to other parts of the care home. It says ‘because [essential care givers] will have closer physical contact with the resident and may (my emphasis) spend longer in and around the care home, including areas other visitors do not enter, it is important that they take further steps to reduce the risks of infection.’ This part of the guidance is in relation to risk management, not granting additional mandatory access to communal areas for essential care givers.
75. In response to my enquiries, the Care Home has confirmed that all visitors, including essential care givers, should have been restricted to bedrooms and not visiting communal areas. The Care Home was able to decide its own policy on the matter. Therefore, I have not found any evidence that Ms Y was disadvantaged in this way by not being allocated an essential care giver.
76. I acknowledge Ms Y’s account that other visitors were using communal areas, while she was not allowed. The Care Home’s management and staff do not recall this and have not been able to verify this. Ms Y questions why the Care Home did not review CCTV footage. However, given the passage of time, this is unlikely to be an option. I am not able to make a finding on this point due to lack of evidence to confirm either account.
77. The government visiting guidance states that arrangements, such as how often a visitor will come and access to areas of the care home should be written down and agreed. This could have comprised part of Ms Y’s essential care giver assessment and would have provided Ms Y with clarity about access to communal areas. Failure to do so has caused Ms Y confusion and frustration.
78. Ms Y complains that she was not allowed to return and re-enter the Care Home on Ms X’s birthday. I appreciate that this was disappointing for Ms X and it seems that there was a miscommunication when Ms Y left mid-afternoon about whether she could return later that day. Ms Y states that other visitors were allowed to re-enter, but she was not. Again, I do not have sufficient evidence to take a view on this point.
79. The Care Home visiting policy says all visits must be booked, number of visitors monitored and all visits should be balanced to ensure fairness to all residents. The Care Home has explained that it was unfortunately at visiting capacity when Ms Y returned, and therefore she was unable to re-enter. While this was frustrating for Ms Y, the Care Home was acting in line with its policy and needed to ensure that all residents had an opportunity to receive visitors. I have not found fault on this point.
80. In summary, I have found that the Care Home failed to carry out an assessment for Ms Y to be an essential care giver for Ms X. This caused frustration, worry and confusion to Ms Y. However, I note that Ms Y visited Ms X multiple times a week, often for prolonged periods. I have also not found anything to confirm that Ms Y’s access to communal areas would have been different if she had been allocated this status. While Ms Y was worried that she may not be able to see Ms X in the event of an outbreak if she was not assigned an essential care giver, this did not happen. I have not found that Ms Y’s visiting access to Ms X was impacted by the lack of essential care giver status.

Complaint handling

81. Ms Y complains about the way the Care Home handled her complaint, specifically she complains that she was not advised that a meeting in November 2021 was a ‘hearing’ and she was therefore not given sufficient information to properly prepare.
82. In a letter addressed to a social worker, the Care Home noted the names of those who attended the ‘hearing’. It is unclear why this word was used, it appears to have been an error. Through this letter, the word meeting is otherwise used multiple times. The Care Home and the Council have confirmed that this was not a hearing or a legal meeting. It was a meeting to review progress on the actions agreed in the previous meeting with Ms Y. The Care Home has explained this to Ms Y and apologised when responding to her complaint.
83. As there is nothing to suggest that this meeting was anything more formal than a review meeting, I cannot see that there was any necessary information to supply to Ms Y or that any specific preparation was required.
84. Ms Y asked the Care Home for a copy of their policy for such ‘hearings’. The Care Home replied that it cannot share the policy as it is an internal document. During my enquiries, it has been confirmed that there is no policy to share, and their comment was about internal policies generally. This caused confusion and it would have been more transparent to simply advise Ms Y that there was no policy to share.
85. Ms Y also complains that the Care Home took a long time to respond to her complaint. I can see that there was some delay here, although I also note the Care Home was responding to a large number of complaints which will have taken time to explore. The Care Home also provided a detailed response to Ms Y’s concerns.
86. While the Care Home could have handled some aspects of its communication better, I do not consider this was significant enough to amount to fault.

Mental Health care

Medication management

87. Ms Y complains that Ms X was over sedated due to inappropriate psychiatric medication levels and her requests for medication reviews were refused.
88. Both the Trust and the Mental Health Trust played roles in Ms X’s mental health care and reviews. For the period complained about within this investigation, the Mental Health Trust primarily led on Ms X’s medication reviews.
89. As mentioned above, in July 2021, a social care review found Ms X to be settled. Ms Y repeated her previous concerns that Ms X was excessively sleepy due to her medication. In September 2021, the OT from the Mental Health Trust’s CHAT team considered Ms Y’s request for a medication review. CHAT is an integrated physical and mental health team who go into care homes to assess and treat residents.
90. The OT has reviewed Ms Y’s presentation earlier that year, after Ms Y had raised similar concerns. As part of this, the OT visited Ms X and also reviewed her medication, behaviour and sleep records. He found that Ms X was active on a daily basis and engaging in activities. He found that the Care Home was still having to manage incidents of risky or challenging behaviour most days. Ms X had occasional naps, but there was no evidence of excessive sleepiness. The Care Home staff had no concerns about Ms X’s presentation or alertness and said she was engaging well. The progression of Ms X’s dementia was also considered a factor contributing towards any increased sleepiness. As such, the OT decided Ms X was well managed on her current medication and there was nothing to suggest that a psychiatric medication review was required.
91. When Ms Y raised the issue again later that year, a best interests meeting was arranged to discuss her concerns. The OT maintained his view that there was no new evidence to suggest that an immediate medication review was necessary as Ms X remained stable. He agreed that there were factors, for example decreases in Ms Y’s motor functions, which may mean she could be safely managed on a different dose and it was agreed to review her medication in January 2022. As Ms Y moved to a different care home before then, this review did not take place.
92. I have reviewed Ms X’s care records for July to December 2021 and, from the evidence I have seen, it is in line with the OT’s findings. The records show Ms X as being generally active, regularly walking around the Care Home and engaging in activities. There were no recorded falls in this period. Ms X did often nap after lunch, however there was nothing to suggest this was for an excessive length of time or frequency. The OT properly considered Ms X’s presentation then clearly explained the reasons why he declined to review her medication at that time. The evidence I have seen supports his view. The OT had agreed to review Ms X’s medication at a later date. I acknowledge Ms Y did not agree with the OT, however I have not found fault in the way he reached his decision.
93. When commenting on the draft decision, Ms Y provided a copy of paperwork from Ms X’s new care home, dated February 2022, which included a recommendation for a medication review. The OT had agreed Ms X should have her medication reviewed in January 2022, so the new care home’s view was in line with this. Ms Y states that, following this review, Ms X’s medication was reduced and Ms X became more active and alert. While I understand Ms Y’s views on this matter, I am not persuaded this is sufficient evidence that Ms X was over sedated previously. The February 2022 review was taken at a different time, in a different place, by a different professional. It is possible for medical professionals to make different decisions, without this demonstrating that one of the decisions was incorrect. It is a matter for each person’s professional judgment.
94. The Mental Health Trust told me that it has since made multiple changes to its processes for monitoring all residents on antipsychotic medication. This includes improving its documents such as a bespoke dementia review checklist, setting reviews at regular intervals which included considering reducing medicine and specific dementia medication training for staff.

Occupational Therapist’s assessment

95. Ms Y is unhappy with the way Ms X’s ability to climb stairs was assessed. Ms Y says she was told a physiotherapist would assess her sister, instead an OT visited. Ms Y says she was not contacted as part of the assessment, not told the outcome and her views were not taken into account.
96. The OT visited Ms X and declined to complete the stairs assessment. The OT noted Ms X’s risk factors including fatigue after outings, existing high falls risk and reduced cognition and co-ordination due to dementia. The Care Home had a lift, meaning Ms X did not need to use stairs for access within the Care Home. The OT decided there were significant risks and no benefit to Ms X using the stairs, therefore completing the assessment would not be in Ms X’s best interests.
97. It appears there was some confusion around whether an OT or physiotherapist was to complete the assessment. When Ms Y disagreed with the OT’s decision, a joint OT and physiotherapist assessment was arranged, although this was not completed as Ms X moved to a different Care Home shortly after.
98. Professionals have a duty to act in a person’s best interests. The OT report clearly records why he felt completing the assessment would not be in Ms X’s best interests. However, his consideration should have included information provided by Ms Y. A professional may disagree with an attorney, however at this point, a Best Interest meeting should have been considered to discuss the difference of opinion between Ms Y and the OT. There is no evidence this happened.
99. Section 4 of the Mental Capacity Act states “in determining a person’s best interests, the person making the determination must consider all the relevant circumstances and follow the steps including assessing the person’s capacity and, if practicable and appropriate, consulting the person who has been appointed LPA to take their views into account”
100. Ms Y was Ms X’s Health and Welfare attorney. The OT did not contact Ms Y as part of the assessment process and did not communicate the outcome directly to her. There appears to be no reason why it would have been impracticable or inappropriate to contact Ms Y. Therefore, the OT actions were not in line with the Mental Capacity Act. This is fault.
101. During complaint handling, the Mental Health Trust accepted that communication with Ms Y could have been better. Following this, the Mental Health Trust put in place improvements to ensure relatives are clearly updated on the outcome of assessment requests and offered time to discuss their views. This was shared with staff as a learning point. I am satisfied that the Mental Health Trust has taken sufficient steps to improve its processes, however it has not apologised to Ms Y for failing to properly consult her.
102. I cannot say whether speaking with Ms Y would have changed the OT’s decision. Further, a joint OT and physiotherapist meeting was planned, which would have provided a second opinion. However, failure to properly involve Ms Y has caused her frustration and uncertainty about how the assessment was handled.

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Agreed actions

Care Provider

103. Within one month of my final decision, the Care Home will:

• Write to Ms Y apologising for frustration and uncertainty caused to her by poor record keeping in relation to significant areas of Ms X’s care.
• Pay Ms Y £200 in recognition of this; and
• explain what action it has taken to date, or will take, to ensure it has appropriate guidance in place for care staff on maintaining “complete, legible, indelible, accurate and up to date” records in keeping with the Regulations.

104. Within one month of my final decision statement, the Care Home will also:

• Write to Ms Y apologising for distress and uncertainty caused to her by the Care Home’s failure to support Ms X’s continence needs in line with her care plan; and
• explain what action it will take to ensure the Care Home has appropriate guidance in place for care staff to provide continence care in line with a person’s care plan.

105. The Care Home will provide us with evidence it has complied with the above actions.

Mental Health Trust

106. Within one month of my final decision statement, the Mental Health Trust will:

• Write to Ms Y apologising for frustration and uncertainty caused to her by failure to include her in some decisions about Ms X's care.

107. I would have asked the Mental Health Trust to explain what action it has taken to date, or will take, to ensure staff properly involve relatives and carers, including attorneys, in decisions about a person’s care and best interests. However, the Mental Health Trust is unable to make such changes as it is no longer responsible for the CHAT team. Instead, the Mental Health Team will:

• Share the final decision with the relevant Trust so it can consider whether any learning points can be taken from the identified fault.

108. The Mental Health Trust will provide us with evidence it has complied with the above actions.

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Final decision

109. I found fault by the Care Home in relation to Ms X’s continence care and record keeping. I found fault by the Mental Health Trust for failing to involve Ms Y in Ms X’s stairs assessment.
110. As a result, Ms X did not always receive the care she was entitled to. Ms Y has also been caused distress, frustration and uncertainty.
111. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman