Summary: Mrs X complains she has been unfairly excluded from involvement with her mother’s care arrangements. The Ombudsman has identified one area of service failure involving storage of records. The Care Provider has agreed a change to the current practice.

The complaint

1. Mrs X complains Care O.W.L. Limited (“the Care Provider”) unfairly excluded her from involvement with her mother’s care arrangements, without good reason. This has caused her great distress. She says her mother, Mrs B, has also been adversely affected by this.
2. In particular, she complains about:
1. not being involved in discussions about Mrs B’s care and support arrangements,
2. unavailability of Mrs B’s care plan, daily care notes, medication, and other records.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
4. If we are satisfied with a care provider’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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I discussed the complaint with Mrs X. I made written enquiries of the Care Provider and considered the response received, including the daily care records for Mrs B. I took account of all the information before reaching a draft decision on the complaint.

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What I found

Relevant law and guidance

Care Quality Commission Fundamental Standards

7. 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. I have used the Care Quality Commission (Registration) Regulations 2009 when considering this complaint. I have referred to these as the “Regulations”.
8. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
9. In this context, the “relevant person” means the service user (Mrs B) or, where that person lacks capacity, “a person lawfully acting on their behalf”.
10. Regulation 17, says care providers should “maintain securely” records and should have “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 provided”.
11. Guidance to this Regulation states records should be “accessible to authorised people as necessary in order to deliver people’s care and treatment in a way that meets their needs and keeps them safe”.

Court of Protection Deputies

12. Among its roles, the Court of Protection can appoint deputies to make decisions for people who lack capacity.

What happened

13. Mrs B lives in sheltered housing. She has dementia and other age-related health problems. To help her to continue to live independently, since January 2018 she has received a daily support from the Care Provider. This comprises of several visits each day to help with personal care, meals, medication, and activities. This is arranged by Mrs B’s son, Mr D, who lives locally.
14. Mrs B has been assessed as not having capacity to make decisions about financial matters. The Court of Protection appointed a local solicitor to act as her financial deputy.
15. Mrs B’s daughter, Mrs X, says she had been excluded by the Care Provider from participating in her mother’s care arrangements. She lives 50 miles away but visits her mother once a week. She does not have a positive relationship with Mr D or his wife. She says she has a close relationship with her mother and that she is entitled to be involved in her mother’s care.
16. Mrs X has raised a number of concerns with the Ombudsman that I have summarised below.

Unavailability of care records including care plan

17. Mrs X says that once the relationship between herself and the Care Provider deteriorated, Mrs B’s daily case notes and medication at Mrs B’s home were kept in a locked box to which she was denied access. On one occasion, when Mrs X requested a home visit from the doctor, he was unable to access these records. She was also unable to access Mrs X’s inhaler when this was required, as well as information about a bruise on Mrs B’s arm. She says she has never had sight of a risk assessment or recent care plan.

No ability to communicate with carers or the Care Provider

18. Mrs X suspects that carers have been told not to enter the premises while she is there. They wait in their car until she has left. The Care Provider has told her all communication would be made through Mr D. Mrs X says this could have caused a problem for Mrs B because Mrs X was not told about Mrs B’s diagnosis of alcohol intolerance. Also, Mrs X says Mrs B complained to her about carers telling her what to do and Mrs X was unable to discuss this with the Care Provider. Mrs X says she wants to be invited to review meetings about her mother’s care, but this request was refused by the Care Provider.

Response to the Ombudsman’s enquiries

19. The Care Provider confirmed it no longer had any form of communication with Mrs X. This was because of Mrs X’s excessive interference and criticism and in the opinion of the Care Provider, Mrs X did not always act in her mother’s best interests. The Care Provider said that Mrs X’s interference impacted on its ability to provide good quality care to Mrs B. It was the unreasonable conduct of Mrs X that led to the restriction in communication and access to records and staff that Mrs X now complains about.
20. The Care Provider is confident it provides Mrs B with excellent care and that the arrangement works best if communication continues via Mr D.

Analysis

21. Mrs X says she had been unfairly excluded from her mother’s care arrangements by the Care Provider. She says this has caused significant distress and could impact on Mrs B’s well-being because her daughter is not able to express her wishes and feelings on her behalf.
22. In reaching a decision about this complaint I must decide whether the Care Provider was under an obligation to involve Mrs X in Mrs B’s care arrangements, or whether it was sufficient to communicate with only Mr D.
23. There is no statutory or regulatory obligation on care providers to involve all family members in care decisions. While Regulation 9 of the Fundamental Standards highlights the importance of involving family in care arrangements when the service user has lost capacity, there is no specific requirement for the inclusion of all family members who might like to be involved.
24. It is sadly not uncommon for family disputes to impact on a relative’s care, particularly when there is a difference of opinion about what should happen. The unfortunate subtext to this complaint is the difficult relationship between Mrs X and her brother Mr D. This is evidenced by the recent application to the Court of Protection that was contested between them.
25. Mrs X has told the Ombudsman she does not have any significant concerns about the day to day care provided to Mrs B by the Care Provider. She is generally happy with the service offered. But she feels she knows her mother well and should have a say in what goes on. This is entirely understandable.
26. However, the Ombudsman does not expect care providers to act as mediators between families in conflict, and the Care Provider has effectively been put in a difficult position because of the family dynamic in this case. I did not consider it to be an appropriate use of public funds to investigate the allegations made by the Care Provider about Mrs X.
27. From the evidence I have seen, including the daily care records, I am satisfied that the Care Provider’s priority has been the well-being of Mrs B. The records confirm Mrs X’s opinion that good quality care has been provided to Mrs B. This is supported by a recent CQC inspection of the Care Provider, with an overall rating of “Good”.
28. But there is one matter of concern, and that is the current storage arrangements of care records and medication. These are kept in a locked box and the access code has not been shared with Mrs X. The Care Provider took this action because it says Mrs X was interfering with them and criticising the work being carried out. Mrs X has a different version of events. I do not need to reach a view on this because it is not relevant to the storage issue.
29. The CQC Fundamental Standards state these records should be accessible in the event of them being needed in an emergency. Mrs X has already encountered a problem when a visiting GP was unable to check them because they were locked away. While this did not impact directly on Mrs B on that occasion, it is not good practice, regardless of the rationale for doing so. Care records should always be available and so failure to ensure they are is fault. However, while this may have caused frustration to Mrs X, I cannot say that she has suffered any greater injustice as a result, and neither has Mrs B.
30. Mrs X’s desire to have more involvement in her mother’s care, while entirely understandable, is not an outcome the Ombudsman can achieve. However, accessibility to Mrs B’s care records may go some way towards this, without the need for direct contact between Mrs X and the Care Provider. An alternative way of resolving this matter could be through mediation with her brother, or she could make her own application to the Court of Protection for a health and welfare deputyship order.
31. Aside from the issue of secure storage, I make no further finding of fault on the evidence so far seen.

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Agreed action

32. Within four weeks from the date of my final decision, I recommend that to be fully compliant with Regulation 17, the Care Provider should ensure the care records and any medication, whilst kept secure, should be accessible if required in the best interests of Mrs B (including to Mrs X).

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Final decision

33. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman