The Ombudsman's final decision:
Summary: There was no reason for the care provider to notify Mr and Mrs X’s family that they had refused to go to bed: both Mr and Mrs X had capacity to make that decision for themselves. The care provider acknowledges its initial response to Mrs A was poor and has offered to reduce the notice payment in recognition. That is a satisfactory way to remedy any injustice.
- Mrs A (as I shall call the complainant) complains that the care provider failed to notify her or any other family member after their elderly parents, Mr and Mrs X, refused to be assisted to bed by a carer. She says as a result, Mrs X fell and Mr X did not activate their alarm to call paramedics until next morning. She also complains that the care provider failed to explain properly what had happened next morning when contacted, and that the care provider has refused to waive the 28 day late cancellation fee for her father when they changed care providers.
The Ombudsman’s role and powers
- We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
How I considered this complaint
- I considered the written information provided by Mrs A and the care provider. Both Mrs A and the care provider had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
- Under the Mental Capacity Act, 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 contract which Mr and Mrs X agreed with the care provider says, “The Company and Customer are entitled to terminate the agreement by either party giving 28 days’ written and signed notice to the other party”.
- Mr and Mrs X are an elderly couple who lived in their own home. Until a few days before the events which are the subject of this investigation, they received three care calls a day from the care provider. Mrs A says she asked for a fourth call at night-time to ensure that her parents were assisted to bed. The tasks detailed for the carer at the night time call were to offer a wash if required, make a hot drink, help change into pyjamas, and see Mr and Mrs X upstairs safely.
- The carer’s log for the night time call on 7 July reads, “(Mr X) was watching tv with wife, made a cup of ovaltine but refused wash, changing bed clothes and assisting to bed as did his wife, cleaned up instead and made wife sinner (sic) of which he wanted a small amount”. The entry for the morning call next day notes that neither Mr nor Mrs X were at home as Mrs X had fallen and Mr X had gone with her to the hospital.
- Mrs A says when her parents had tried to go to bed after the carer left, Mrs X fell and broke two ribs. Although Mr and Mrs X had personal alarms, neither was activated until next morning and so Mrs X had spent the night on the floor. Mrs A says the morning carer telephoned Mrs A’s sister and told her there had been an ‘incident’ but did not explain what had happened.
- Mrs A telephoned the care provider. She says at first she was told her parents had been put to bed with dinner, but as the bed was not slept in she knew that was untrue. Then she was told they had been put to bed with the TV on; then that the computer system had crashed and the care provider would call back. Finally she was told that Mr and Mrs X had refused to go to bed and the carer could not make them, and that as a new carer she thought it was too late to notify anyone.
- Mrs A says after this incident she wanted to find a different provider. She says her sister telephoned the care provider to give notice and asked the agency to cancel the night-time call initially in any case, as she moved in with their father. The care provider explained the family would have to pay the 28 days’ notice period. Mrs A cancelled the entire contract on 15 July by email. Mrs A says in a telephone call on 16 July, the care provider told her the notice period would be charged at 3 calls a day as that was the latest contract: in fact she says they were invoiced for 4 calls a day.
- When Mrs A complained to the care provider, a manager telephoned her to ask about the complaint. Mrs A says the manager asked if the family used “Open Pass”, a system which enabled families to see in real time if the care as stipulated in the contract had been delivered. Mrs A says they have never used or been offered this system and believed the care provider was trying to blame the family for what had happened.
- On 26 September the care provider’s manager responded to the complaint. She said all clients were offered Open Pass to see what care was being provided. She confirmed that Mr and Mrs X had refused to go to bed at the time of the night-time care call on 7 July. She said, “We are not allowed to insist or to force anyone to do something against their will”.
- In respect of the invoices she said that the care provider had been asked to reduce the calls to three temporarily when Mrs X went into hospital and so had held open the fourth call until further notice: hence the invoice was based on four calls a day. She agreed with Mrs A to reduce the invoices for the days when only three calls had been made. However, she said the care provider was adhering to the terms of the contract (which said there was a 28 day notice period and if care was cancelled before that, the notice period would be charged until the 28th day) and she would not reduce the invoices further.
- Mrs A complained to the Ombudsman. She said following the fall her mother had only spent two days at home and was now in a nursing home. She said if the carer had notified them of their parents’ refusal to go to bed, she or her sister would have gone to their house and tried to persuade them.
- The care provider says “the care staff attended an evening call at 8:20pm…. The carers cleaned, made food and a cup of Ovaltine. Both (Mr and Mrs X) refused a wash, change of bed clothes and being taken to bed”. The care provider says both Mr and Mrs X were deemed to have capacity to take that decision and says there was “nothing in the care plan to suggest they could not competently make this decision on their own. There had been no request to inform others should any tasks requested of us be refused during a care call. As such, while the refusal to go to bed was noted in the care notes, it was not considered a matter that should be raised elsewhere. We support our customers to live as independent a life as possible.” The care provider also says both Mr and Mrs X had personal alarms.
- The care provider says it continued to provide care for Mr X until 15 July and then invoiced for the remainder of the 28 day notice period.
- The care provider acknowledges that its response to the initial concerns was poor. It apologises “unreservedly” for its handling. It has not invoiced Mrs X following the incident. It offers to reduce the notice period payment for Mr X by £250 to recognise its poor handling of the matter.
- There was nothing in the contract to say carers should contact family if Mr and Mrs X refused any element of the care plan. Had the situation continued then it would have been sensible to raise it as a concern but the care provider is right to say it could not force Mr and Mrs X to act against their will. There is no indication that either of them lacked the capacity to make their own decisions about their care.
- The care provider should have been open and responsive when Mrs A contacted it next morning to find out what happened. That failure caused some distress which the care provider recognises and has offered a reduction in the payment of the final invoice for the notice period to acknowledge. There is no contractual reason why the care provider should waive the reminder of the notice period for Mr X.
- The care provider will within one month of my final decision issue a revised invoice reduced by £250 to recognise the distress caused by the way it responded to Mrs A’s initial concerns.
- Injustice was caused by some fault on the part of the care provider. Satisfactory completion of the recommendation at paragraph 21 will remedy that injustice.
Investigator's decision on behalf of the Ombudsman