Royal Borough of Windsor and Maidenhead Council (17 019 298)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 07 Aug 2019

The Ombudsman's final decision:

Summary: the Council was at fault in its care of the late Mrs X. Carers failed to follow her support plan or take action when she refused care, despite her obvious deterioration. That failure caused her ongoing lack of dignity, and anxiety and uncertainty for her family. The Council should review the way in which it monitors commissioned care and offer a payment to her family for the distress caused.

The complaint

  1. Mr B (as I shall call the complainant) complains about the way Mrs X, his wife’s late mother, was allowed to deteriorate while in the care of the Council despite its knowledge of her previous psychiatric history.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
  2. 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 local 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. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

Back to top

How I considered this complaint

  1. I considered all the written information provided by Mr B and the Council. We spoke to Mr B. Both Mr B and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
  2. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

What I found

Relevant law and guidance

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
  2. The Care Quality Commission (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.
  3. The guidance says (regulation 10) that service users must be treated with respect and dignity. It says they must not be neglected or left in undignified situations.
  4. Regulation 12 (concerning safe care and treatment) says staff should be suitably trained in managing medicines.
  5. Guidance on regulation 13 (safeguarding from harm and abuse) says ‘providers and staff must take all reasonable steps to make sure that people who use services are not subjected to any form of degradation or treated in a manner that may reasonably be viewed as degrading, such as: not providing help and aids so that people can be supported to attend to their continence needs.’
  6. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
  • because he or she makes an unwise decision;
  • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
  • before all practicable steps to help the person to do so have been taken without success.

The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.

  1. 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. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a 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.

What happened

  1. The late Mrs X had a history of self-neglect and had previously been detained under the Mental Health Act as a result. She frequently omitted to take essential medication for her thyroid condition which resulted in loss of appetite and weight loss. On one occasion she had taken multiple sleeping tablets.
  2. In May 2017, as a result of concerns about her failure to take her medication and her weight loss, the Council assessed Mrs X’s capacity to make her own decisions about her care needs. The outcome of the assessment was that Mrs X had fluctuating capacity. The Council took a decision in Mrs X’s best interests to put in place a care package of one 45-minute care call a day as the least restrictive option. The social worker recorded her reasons as ‘a small care package of one call each day would mean that a carer could encourage (Mrs X) to wash and change her clothes each day, take her medication as prescribed each day and be encouraged to eat a nutritious meal at least one each day with a further meal being left for lunch. Carers would also have the opportunity of checking for further decline and advising if (Mrs X) has food and fluids in the house to eat and drink.’
  3. The Council’s adult social care organisation (Optalis) commissioned Carewatch to provide the service to Mrs X. Carewatch in turn sub-contracted to Oxford House, a domiciliary care provider. Mrs X paid the full cost of her care. The carer agency was to provide a 45-minute call each day to Mrs X to supervise her medication, encourage her to eat breakfast, prepare a snack for lunchtime, encourage her to wash and change into clean clothes.
  4. The social worker visited Mrs X a fortnight after the start of the care package. She noted that Mrs X appeared much brighter but recorded that Mrs X was wearing soiled clothes and believed people were coming into the house at night and cutting her hair. She agreed to add a shopping call once a week to the care package as part of a ‘social inclusion’ call: the social worker noted elsewhere that Mrs X was existing on milk and cake brought by a neighbour. Mrs X’s GP asked for the carers to administer the medication and this was added to the support plan.
  5. The social worker and a support worker visited Mrs X again on 6 November to review the care arrangements. They noted Mrs X had a severe eye infection. Mrs X was described as surrounded by empty biscuit packets and said she mostly ate biscuits: the social worker said she would ask the GP to prescribe some supplement drinks. Mrs X’s clothes were described as ‘heavily soiled and falling off’: Mrs X said she did not have any clean clothes to wear and the social worker said she would add a laundry call to the care package. Mrs X said her hot tap and washing machine were not working. She did not think she was getting any shopping calls from the care agency. It was noted that medication had been left out where Mrs X could access it.
  6. The social worker asked the care agency about the shopping calls. The agency said at first Mrs X had gone to the bank with the carer to get money out but no longer wanted to do so and was reluctant to have shopping brought. The social worker also contacted the GP to prescribe supplement drinks, arranged for the washing machine and hot tap to be repaired, and arranged a chiropodist appointment for Mrs X. She also spoke to Mrs B. The GP agreed to ask a health visitor to take some blood samples as well.
  7. On 8 November the health visitor contacted the social worker with her concerns about the deterioration in Mrs X’s state. She said she had managed to persuade Mrs X to change and wash some clothes. When the social worker spoke to the care agency, the agency agreed that carers had ample time to encourage Mrs X to take medication and administer her eye drops. The carer who had left out the medication apologised.
  8. The social worker made a joint visit with another worker on 14 November to Mrs X to talk to her about her self-neglect, failure to eat and reluctance to take her medication. A further mental capacity assessment was undertaken. On 16 November the social worker visited again and noted Mrs X was still at high risk of self-neglect. She discussed her concerns with her manager. She contacted Mrs X’s GP again who agreed to visit.

The safeguarding alerts

  1. On 6 December a safeguarding alert was raised as carers had once more left medication out of the safe and within Mrs X’s reach.
  2. On 11 December the health visitor called at Mrs X’s house to take some blood samples and found her on the floor. She told the social worker Mrs X had been lying on the floor for 5 or 6 hours. She said there were faeces all over the room where Mrs X had eventually crawled into a chair and her clothes were not on properly. The carers had already been in to see Mrs X and had noted in the log book that all was well. The carers said they had offered to call an ambulance but when Mrs X refused they left. The health visitor had called an ambulance. The paramedics had said they intended to raise a safeguarding alert as well: they said there were dried faeces on the carpets and no evidence the carers had been upstairs for some time.
  3. The social worker contacted the hospital ward to which Mrs X was admitted. She had been diagnosed with pneumonia. She was described as doubly incontinent and reluctant to weight-bear. The social worker advised that Mrs X had delusional thoughts, was self-neglectful and should receive a psychiatric visit.
  4. The psychiatric liaison officer confirmed to the social worker that she believed Mrs X was in the early stages of dementia. The hospital Occupational Therapist said Mrs X had not succeeded at the stairs assessment as she was too weak. The possibility of rehabilitation was doubtful. Mrs X was subsequently discharged to a care home.
  5. The Council convened a safeguarding strategy meeting which met in January 2018. The care agency manager said the carer who attended Mrs X on the morning after her fall had told both her own office and the neighbor about Mrs X, and ‘assumed’ the neighbor would take action. She said she had not seen any faeces and Mrs X did not let her upstairs.
  6. The social worker said the smell of faeces would have been noticeable. She said Mrs X had obviously been self-neglecting for some time but this had only been observed by visiting professionals and not reported back by the carers who attended on a daily basis despite the remit of the care plan. Carers had failed to react to Mrs X’s fall. The social worker pointed out this was the third safeguarding alert (the other two had concerned medication left out). The care agency manager said they had failed to act properly and she was putting in place additional staff training for medication and for ‘mental health and resistance’.
  7. The allegation was substantiated. The care agency manager wrote to Mrs X to apologise for the poor service
  8. Mr B wrote to the managing director of the care agency and said Mrs X was now suffering extreme malnutrition, had lost virtually all her possessions as she had to move into a care home, and was a worse state physically than when the care agency was commissioned to look after her.
  9. Mr B also complained to the Council. The Council responded that the safeguarding allegation of neglect and omission had been upheld. It said while it was responsible for commissioning the care, it was not responsible for the day to day management of the service but said there were ‘rigorous checks’ to ensure people received good quality care.
  10. Mrs X died in April 2018.
  11. Mr B complained to the Ombudsman.
  12. The chief officer of Optalis says Mrs X refused care on numerous occasions and this put her at risk of developing eye and skin infections. He says although the care plan stipulated that carers were to notify the head office when she refused care, this did not appear on the daily notes. He says as a result of the upheld safeguarding allegation the carers had received extra training in medication management and mental health resistance training. Finally he says while he sympathizes with Mrs X’s family, he notes she had taken part in some activities after her admission to the care home and could not see she had suffered any illness attributable to the carers’ neglect.

Analysis

  1. The Council was responsible for Mrs X’s care. For a period of several months Mrs X’s condition was allowed to deteriorate to the point where she was rarely dressed in clean clothes, was subsisting on milk and biscuits, was unwashed and suffering skin and eye infections as a result of neglect, and was allowed to remain in a soiled state. The carers failed to follow the care plan and alert anyone to her deterioration. That was fault on the part of the Council which caused Mrs X significant injustice and breached the regulations.
  2. Most concerning is the assumption on the part of the carers that someone else would take action after Mrs X fell, and their note in the daily log that all was well when they left Mrs X in the knowledge that she had fallen, was poorly dressed and soiled. That was fault which led to the substantiated allegation of neglect. The manager’s statement that there are rigorous checks which ensure people receive a good service is open to challenge given what happened here.

Agreed action

  1. Within one month of my final decision the Council will review the way in which it monitors the delivery of home care to vulnerable adults and let me see its proposals for improvement;
  2. Within one month of my final decision the Council will review the way it responds to complaints about commissioned care;
  3. Within one month of my final statement the Council will make a payment to Mrs X’s family of £1000 in recognition of the distress caused to them by the Council’s failure to provide a good standard of care to Mrs X.

Back to top

Final decision

  1. There was fault on the part of the Council which caused injustice to the late Mrs X.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings