Summary: Ms X complained the Fountains Nursing Home failed to provide adequate care to her father in the hours prior to his death and that the Council’s safeguarding investigation was flawed. The Council has already identified fault, mainly around communication with the family and the Nursing Home’s recording of events. It has apologised to Ms X and made service improvements. These are suitable actions to remedy Ms X’s injustice and prevent a reoccurrence.

The complaint

1. Ms R complained on behalf of Ms X about the actions of The Fountains Nursing Home in the hours prior to her father, Mr F’s death. Specifically, Ms R complained the Nursing Home:
1. failed to take appropriate measures to ensure the safety of Mr F and other residents during the COVID-19 pandemic;
2. failed to inform the family in a timely manner that Mr F had tested positive for COVID-19;
3. failed to inform the family when the GP stated Mr F was at end of life (EoL);
4. wrongly told Ms X that Mr F had died when she arrived at the Nursing Home;
5. told her she would have to go for help because Mr F’s buzzer was not working;
6. inappropriately asked Ms X to administer liquid pain relief medication to Mr F;
7. did not have two of the EoL medications Mr F required; and
8. did not administer the EoL medications that were available in time to reduce Mr F’s discomfort.
2. In addition, Ms R complained Mr F fell twice in January 2020 resulting in a broken hip which she says staff at the Nursing Home were not aware of. She says the staff instead thought Mr F had constipation.
3. Ms R also complained about the subsequent Council safeguarding investigation into the administration of medication in the last few hours of Mr F’s life and the falls in January 2020. She complained:
1. the Council Chair and Enquiry Officer based their findings on what was said by the Nursing Home manager at the meeting even though Ms X disputed this at the time;
2. the Chair did not respond to Ms X when she sent them copies of Mr F’s care notes which contradicted what the Nursing Home manager said at the meeting; and
3. Ms X was criticised at the safeguarding meeting for not raising the issues on the day of Mr F’s death.
4. Ms R says that as a result Ms X has been left shocked and distressed, particularly by the fact her father did not have the pain relief and EoL medication he needed.

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The Ombudsman’s role and powers

5. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases.
6. In this case, the Council arranged and commissioned Mr F’s care. Therefore, we have treated the actions of the Nursing Home, including any fault identified, as those of the Council.
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council and Nursing Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

9. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
10. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
11. 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)
12. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

13. I spoke to Ms R and Ms X and considered their comments.
14. I considered documents requested from the Council. These included complaints correspondence between Ms X and the Nursing Home and Council and safeguarding documents.
15. I wrote to Ms R and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Safeguarding

16. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult. (Nursing Act 2014, section 42).
17. Following a safeguarding investigation, the outcome will be:
• substantiated – where the allegations are, on the balance of probabilities, proved;
• not substantiated - on the balance of probabilities the accusations are unfounded, unsupported or disproved; and
• inconclusive – insufficient evidence to allow a conclusion to be reached.

What happened

18. Mr F used to be a resident at The Fountains Nursing Home. Ms X said she received a call from the Nursing Home on the evening of 21 April to say Mr F was unwell and the Nursing Home would test him for COVID-19. The Nursing Home arranged a video appointment with a GP the same day as Mr F’s health was deteriorating. The GP diagnosed Mr F as being at the end of life and prescribed four anticipatory EoL drugs and antibiotics. Two of these were received by the Nursing Home the same day. The procedures for the other two, which were in short supply nationally, was for care and nursing homes to call a central supplier when they were needed and they would be delivered within the hour.
19. On 22 April 2020, Mr F tested positive for COVID-19. Ms X said she only learnt this, and the fact Mr F was approaching EoL when she called for an update on 23 April.
20. Ms X was informed Mr F was close to death on 27 April. She arrived at the Nursing Home around 4:30pm. She says when she arrived a care worker wrongly told her Mr F had died.
21. She said that around 9pm Nurse B asked her to give Mr F liquid pain medicine whilst she went to get the EoL medication. Ms X said Nurse B said she could not find the EoL medication. Mr F died that night at 9:50pm.
22. Following Mr F’s death, Ms X made complaints to the Nursing Home and the Care Provider who owned the Nursing Home. She also raised a safeguarding concern with the Council. Following its conclusion, she complained to the Council about the investigation and the actions of officers involved when she submitted new information after it had concluded.
23. Below, I have provided a summary of the key outcomes and findings of each investigation.

Complaint to the Nursing Home

24. Ms X’s substantive complaint to the Nursing Home was that on the day Mr F died, Nurse B told Ms X she did not know if the Nursing Home had the EoL drugs Mr F might need on the premises.
25. The Nursing Home manager spoke to Nurse B who said they administered Mr F’s normal medication and told Ms X that if Mr F needed any EoL drugs, they would administer them, but he did not need them at present. Nurse B said she advised Ms X to let them know if she observed any signs of agitation, breathing problems or discomfort.
26. The Nursing Home investigation concluded there had either been a misinterpretation of what Nurse B told Ms X or it had not been explained properly. It said it had advised Nurse B to enhance their communication skills and to take care when explaining EoL issues to families.

Safeguarding concern and investigation

27. Around the same time as her complaint to the Nursing Home, Ms X raised two safeguarding concerns with the Council. She said Mr F:
• did not receive his EoL drugs on the night he died and he looked to be suffering as a result; and
• fell twice in January 2020 resulting in a broken hip which staff at the care home were not aware of. They instead thought Mr F had constipation.
28. Ms X sent two short video recordings of Mr F’s breathing taken in the hour before he died.
29. During its investigation, the Council held a safeguarding case conference. This was attended by two Council social workers, two adult safeguarding nurses from the local NHS clinical commissioning group and the Nursing Home manager.
30. The notes record the following points were made about Mr F’s EoL care:
• the observations recorded in Mr F’s notes made no mention that he was in pain or distressed and Ms X, who had been there since around 4:30pm also did not bring this to the attention of staff until around 9pm;
• there was conflicting evidence because the notes showed Mr F was checked hourly but Ms X said he was only checked three times whilst she was there;
• the two EoL medications which were in short supply could be ordered in within an hour. But because Mr F died in less than an hour from his breathing deteriorating, there was insufficient time for them to be administrated;
• no conclusions could be made from the video recordings made by Ms X although there were signs Mr F may have had secretions in his throat which were not reflected in the documentation;
• there was a conflict between what Nurse B and Ms X believed had been said and this might be because of a communication breakdown.
31. The safeguarding investigation found Ms X’s concerns were inconclusive as it was felt Mr F’s care was appropriate but there was uncertainty around the management of EoL symptoms, specifically around Mr F’s secretions. The documentation did not support whether EoL medication was needed but all the professionals agreed Mr F died peacefully.
32. Actions from the investigation were around EoL documentation and improving communication with families.
33. In relation to Ms X’s concern about Mr F’s falls in January 2020, the investigation concluded Mr F’s records had been reviewed which noted the Nursing Home called the paramedics. They examined Mr F and found no injuries. Mr F’s GP was contacted who identified reduced mobility. Mr F was transferred to hospital as a result.

Complaint to the Care Provider

34. In November 2020, Ms X complained to the Care Provider. The complaints she made which were not covered by the safeguarding investigation were:
• the Nursing Home failed to inform her when Mr F tested positive for COVID-19 and was diagnosed as being end of life by the GP;
• she was wrongly told Mr F was dead when she arrived at the Nursing Home;
• the Nursing Home care notes stated Mr F was observed hourly but this was untrue;
• she was told to administer liquid pain killers to Mr F even though she was clearly distressed; and
• Mr F’s buzzer was not working and so she lost valuable minutes when she had to leave the room to call for staff just before Mr F died.
35. Ms X also asked questions around the Nursing Home’s procedures on infection control of COVID-19.
36. The Care Provider responded and apologised for not informing the family immediately of the results of Mr F’s COVID-19 test and the GP’s diagnosis that Mr F was at EoL. It also apologised for a care worker informing Ms X her father had died and said this had been addressed with them.
37. The Care Provider also answered Ms X’s questions about infection control. It stated that because the events happened at the beginning of the pandemic, residents were moved into care and nursing homes without testing. Furthermore, staff testing was not as widespread. It stated however, it did not use agency workers, the Nursing Home had sufficient personal protective equipment (PPE) and staff were assigned to one of three units and did not mix.
38. In relation to Ms X’s other complaints, the Care Provider stated these had been investigated under the Council’s safeguarding procedures and it accepted those findings.

Complaint to the Council about the safeguarding investigation

39. In January 2021, Ms X complained to the Council. She said the Nursing Home stated during the investigation that it had carried out observations every 30 minutes in the hours before Mr F’s death. Ms X said she had been with Mr F during the last few hours he had been alive and could witness this had not taken place. Ms X said she had raised this at the safeguarding meeting but her concerns had been dismissed. Ms X said she now had a copy of her father’s records which contradicted what the Nursing Home manager had said at the safeguarding meeting. Ms X said she had tried to raise this with the safeguarding chair as new evidence but had received no acknowledgement.
40. Ms X also complained that during the safeguarding meeting, it was stated she did not raise any concerns on the date her father died. Ms X felt this was an inappropriate comment to make.
41. Ms X sent the Council a copy of Mr F’s care sheets. These recorded that in the six hours before his death, he had mainly been seen by care staff once an hour.
42. Ms X’s MP also complained to the Council.
43. The Council responded in April to the complaints raised by Ms X and her MP.
44. In relation to the 30 minute observations, the Council officer stated they had spoken to the Nursing Home manager for clarification. The complaint response stated “The care home manager advised that the staff would have tried to give you as much privacy and dignity during the final hours of your father’s life and wouldn’t have wanted to disturb you where possible… the observations may have been recorded retrospectively as you would’ve informed staff of any significant change to your father’s condition”.
45. The Council upheld Ms X’s complaint and apologised for the stress and upset this had caused Ms X and for not being able to fully provide an explanation of events. It said it had learnt from this and would ensure that future safeguarding meetings would “critically evaluate the evidence further”.
46. In relation to Ms X’s complaint about a lack of response from the safeguarding chair, the Council stated that Ms X’s partner raised the issues about the records via email with the enquiry officer, copying in the safeguarding chair. The enquiry officer had responded promptly, again copying in the chair. The chair had not sent a separate response as they had not been specifically asked to do so.
47. The Council apologised about the comment made in the safeguarding meeting that Ms X had not raised any concerns on the day her father died. It said these comments were “wholly inappropriate and unacceptable”.
48. In relation to the complaint by Ms X’s MP that Ms X was wrongly told her father died when she first entered the Nursing Home, the Council said the Nursing Home manager had spoken to the care worker who had greeted Ms X and who had been looking after Mr F. The care worker said they had tried to prepare Ms X for the fact Mr F had deteriorated significantly since she had last seen him and was very poorly. The care worker apologised for the miscommunication and the distress this caused Ms X.

Council’s response to my enquiries

49. The Council informed me that as part of its response to the pandemic it held weekly meetings with care and nursing homes, public health, adult social care and community health professionals to share updates on guidance and advice regarding the pandemic. The Nursing Home usually attended these meetings. In addition, the Council assigned a link worker to each care and nursing home who was in contact several times a week to discuss arrangements they were putting in place to manage visiting and other matters related to the pandemic.

My findings

50. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

Complaint 1a - COVID-19 infection control

51. The events that form this complaint took place at the start of the pandemic when there was significantly less known about COVID-19 and how to control the rates of infection.
52. Nationally, new residents or those discharged from hospital were not being tested and staff testing was not common. As a result, the possibility of COVID-19 entering the Nursing Home was an ever-present risk. The Council took suitable steps to ensure care and nursing homes were kept up to date with changes in guidance and the steps required protect their residents. The Nursing Home attended these meetings. It also did not use agency staff where possible and it went into lockdown, thus limiting people entering the Home. There was no fault in the Council’s or Nursing Home’s actions.

Complaints in paragraphs 1b, 1c, 1d and 3c – delays informing the family Mr F had COVID-19 and was end of life, the Nursing Home wrongly said Mr F had died and Ms X failed to raise concerns the day Mr F died

53. Investigations have already taken place and it has been stated that none of the above should have happened. Where further actions were to be taken, Ms X has been informed of this. Ms X has also received apologies. There is nothing more to be achieved by further investigation. I will not investigate these matters further.

Complaint in paragraph 1e – buzzer not working

54. The Nursing Home made Ms X aware of the situation which meant she knew she would have to go or call for help. It was important to Ms X to be with Mr F as much as possible but any time away from him would have been minimal. I will not investigate this further because I do not consider any fault would have caused Ms X significant personal injustice.

Complaint 1f - Ms X asked to administer liquid pain relief medication to Mr F

55. Ms X complained she should not have been asked by Nurse B to administer liquid pain relief to Mr F because she was too distressed. It was Ms X’s choice whether to agree to do this. I will not investigate this matter further as I would be unlikely to find fault.

Complaints in paragraphs 1g) and 1h and 3a) – administration and availability of EoL medication and safeguarding investigation ignored her comments over observations

56. The safeguarding investigation sought the involvement of medical staff. They found it was not possible to conclude from the videos and other evidence whether Mr F had secretions which would have benefitted from EoL medicine. They did, however, raise concerns that the secretions had not been documented. The investigation concluded that Ms X was with Mr F for the hours preceding his death and did not request assistance until shortly before he died which indicated Mr F was not in distress during this period. These conclusions were robust and took into account the available evidence, including the videos Ms X took. The investigation made suitable service improvement recommendations. These sought to improve procedures going forward and were appropriate to the findings. There was no fault in the Council’s actions.
57. Ms X believes her comments over when observations took place were ignored. The Nursing Home manager stated observations took place every half hour. The records showed observations took place hourly. Ms X says that there were three visits from staff in the five hours she was there.
58. The Council upheld Ms X’s complaint about the observations and apologised for the stress and upset this had caused her. It said it would ensure future safeguarding investigations would evaluate information more robustly. This was a suitable response to Ms X’s concerns. It is unlikely further investigation could achieve anything meaningful.

Complaint in paragraph 3b - the Chair did not respond following an email from Ms X’s partner raising issues about the safeguarding investigation

59. The Council provided a satisfactory explanation about why the Chair did not respond directly to Ms X’s partner. Ms X’s partner received a response in a timely manner from the officer he sent the email to. There was no fault in the Council’s actions.

Complaint in paragraph 2 – Nursing Home failed to identify Mr F had broken his hip.

60. The safeguarding records note the Nursing Home called the paramedics and Mr F’s GP following which he was transferred to hospital. It is unlikely that investigation by the Ombudsman would find fault. Therefore, I will not investigation this matter further.

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Final decision

61. I have completed my investigation. The Council has already found there was fault in some of the Nursing Home’s and its own actions. It has apologised to Ms X and made service improvements which are suitable steps to take.

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Investigator's decision on behalf of the Ombudsman