Summary: There was no fault in the standards of care provided to the complainant, in a home care package commissioned by the Council. For this reason, the Ombudsman has completed his investigation.

The complaint

1. I will refer to the late complainant as Mr B. Mr B is represented in his complaint by his sister, to whom I will refer as Miss L.
2. Miss L complains about the standards of care provided to Mr B by a Care Provider, commissioned by the Council. In particular, she says:

• Mr B’s carer gave him sweets, which were harmful to him because he was diabetic;
• she was not certain the carer properly monitored Mr B when taking his medication, as required by his care plan;
• the carer did not use an available portable heater to heat Mr B’s room, during a period when the heating in his home had broken down.

3. Miss L believes these matters contributed to Mr B’s death.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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)
6. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

7. I reviewed the Care Provider’s and Council’s responses to Miss L’s complaint, Mr B’s care plans and associated risk assessments, the contemporary reviews of Mr B’s care completed by the Care Provider, and a capacity form signed by Mr B.
8. I also shared a draft copy of this decision statement with each party for their comments.

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What I found

9. Mr B suffered with several medical conditions, causing him mobility difficulties. He was also diabetic.
10. The Council commissioned a home care (‘domiciliary’) package to support him. The carer’s duties included helping Mr B to wash, dress, prepare food, and move about his home, and to visit local shops for him if necessary. The carer was also responsible for assisting Mr B in taking his medication.
11. The Care Provider took over Mr B’s package on 25 May 2018. At this point, Mr B was receiving two care visits each day, one in the morning and one in the evening.
12. On 1 June, Mr B was admitted to hospital, where he remained until 1 August. Upon discharge, his care plan was reviewed, and an additional daily lunchtime visit was arranged.
13. The Care Provider called Mr B on 12 September to review his satisfaction with its service, but he did not answer the phone. The Care Provider completed further ‘spot checks’ on 10 October and 10 December, and recorded Mr B was happy with its service and had no complaints.
14. On 20 January 2019, when arriving for Mr B’s morning visit, the carer found he had fallen from his bed. The carer called an ambulance, and Mr B was admitted to hospital. He remained there until 17 April, when he passed away.
15. On 7 May, Miss L contacted the Care Provider. She alleged Mr B had received inadequate care, which had contributed to his death. In particular, she alleged the carer had provided Mr B with sweets, when he should not have done because of Mr B’s diabetes; that she was “not sure” the carer had monitored Mr B taking his medication; and that the carer had failed to use a portable heater in Mr B’s room when the heating had broken down.
16. The Care Provider responded to say it would undertake a full investigation. After arranging an extension to its original target date, the Care Provider sent Miss L a copy of its report on 19 June.
17. The Care Provider’s report found:

• Mr B’s care plan called for him to be provided sugary snacks when necessary, as part of his diabetes management. It had interviewed Mr B’s carer, who said he had become very familiar with Mr B’s preferences, and ensured he always ate a balanced diet;
• the carer was “adamant” he had always followed Mr B’s care plan when it came to his medication, would ensure Mr B had properly ingested the medicine, and only made a note of it on the Medication Administration Record after he had observed this;
• the carer was not aware there was a portable heater available. The carer had pointed out Miss L lived in the same flat, but had not informed him the heater was there.

18. The Care Provider said its “lessons learned” were to maintain its current training procedures for staff, as the evidence from this case showed they were effective. However, it apologised to Miss L because she had felt the need to make a complaint.
19. Miss L responded to say she was unhappy with the outcome of the investigation. She requested a meeting with the Care Provider, but despite several attempts to arrange a meeting over the following months, this did not go ahead due to difficulties with staff availability.
20. On 26 November, Miss L referred her complaint to the Ombudsman.
21. When the Ombudsman’s investigation began, we contacted the Council to inform it of this, and to make enquiries. The Council confirmed it had been unaware of the complaint before this point, as it had been dealt with solely by the Care Provider. During the period it was collating its response to our enquiries, the Council arranged two meetings between itself, Miss L and the Care Provider. On 6 August 2020, it sent its own complaint response to Miss L.

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Legislative background

22. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
23. 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.

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Analysis

24. Miss L has raised three specific issues about the care provided to her late brother. For clarity, I will address each in turn. I will also consider separately the way Miss L’s complaint was handled by the Care Provider and the Council.
25. First, I must discuss a point about the evidence I have used during my investigation. In a complaint of this type, we would normally seek to review daily care notes and the Medication Administration Record (MAR) as part of the investigation. For this reason, I requested a copy of these records from the Council.
26. In its response, the Council explained the notes and MAR had been kept on site at Mr M’s property during the care package – this is, as I understand it, a common practice in a home care situation. Since the package ended, the Care Provider said it had asked Miss L to provide these records, but it had been unable to obtain them. It follows, therefore, the Council could not provide copies of the records to me.
27. This is unfortunate. But I consider I have adequate alternative evidence on which to base my decision on Miss L’s complaint, for the reasons I will explain.

The carer providing Mr M with sweets

28. Miss L complains Mr M’s carer provided him with sweets, despite the risk this presented because of Mr M’s diabetes. The Care Provider said the carer had adhered to Mr M’s care plan, which included ensuring he had access to sugary snacks and drinks as part of his diabetes management.
29. I have reviewed Mr M’s care plan. As the Care Provider says, one element of it is the provision of sugary snacks to Mr M.
30. In its recent complaint response, the Council wrote Miss L had recognised Mr M sometimes needed sweets to raise his blood sugar levels. However, she considered there were times the carer had purchased sweets for Mr M when he did not need them for this purpose.
31. In the absence of the care notes, I cannot draw any firm conclusions on the occasions when the carer provided sweets or similar to Mr M. And even if I did have the care notes, I cannot be certain they would offer any more conclusive evidence about this.
32. Either way, the critical point here is that Mr M was considered to have capacity to make his own decisions.
33. The Council’s complaint response records that Miss L criticised the carer for “[not looking] deeply into [Mr M’s] ability to make good decisions”. But the law sets a strict procedure for assessing someone’s mental capacity. It says – specifically – a person should not be considered to lack capacity simply because they make decisions which appear “unwise”.
34. And so it was not for the carer to decide, independently, that Mr M should not be allowed to eat sweets. Nor was it up to Miss L to make this decision. That it may have been medically inadvisable for Mr M to eat them does not change that.
35. I appreciate it is difficult to see a loved one make decisions which are potentially harmful to them. And it is understandably upsetting if a third party (such as a carer) appears to facilitate this.
36. But ultimately, I cannot say there was fault here. I have no objective evidence to say the carer was not simply following the care plan by providing sweets. And even if there was evidence to support Miss L’s comments, the decision was lawfully Mr M’s to make anyway.
37. I find no fault in this element of the complaint.

The carer failing to monitor Mr M when taking his medication

38. Miss L suggests the carer was not properly ensuring Mr M took his medication. The carer disputes this, and according the Care Provider’s response, was “adamant” he ensured Mr M ingested the medication, and then noted it on the MAR afterwards.
39. Again, in the absence of the MAR, I cannot say whether there is a proper daily record of Mr M taking his medication. Even if I did have the MAR, this would only demonstrate what the carer had noted, and would not provide an objective record of what had happened.
40. I note, however, Miss L’s own comment in her complaint to the Care Provider was that she was “not sure” the carer had properly monitored Mr M’s medication. She did not explain why this suspicion had arisen, nor provide any examples of when she believed the carer had failed to monitor the medication. So it is difficult to understand the basis of Miss L’s allegation here.
41. I note also the Care Provider undertook regular quality checks with Mr M during the package, during which he reported no concerns or dissatisfaction with the service he was receiving. The records of the checks are in the form of a ‘tick list’, and so they do not provide significant detail; but given, again, Mr M’s capacity, I consider some weight should be attached to this evidence. It is reasonable to expect Mr M to have raised any problems about the carer during these checks.
42. I find no fault in this element of the complaint.
43. Separately, I cannot see any reference to this element of the complaint in the Council’s complaint response. It appears Miss L instead raised a different issue, which was to do with the Care Provider changing Mr M’s regular carers part-way into his package.
44. As Miss L did not raise this initially to the Care Provider, nor in her complaint to the Ombudsman, I cannot strictly consider this as part of this case. However, the Council’s complaint response explains the change was due to the Care Provider’s staff rotas.
45. I appreciate it is better for a service user to always have the same carers, but this is unfortunately dependent on the availability of staff. There is no reason to see fault in the fact the Care Provider had to change Mr M’s carer; and I note, again, Mr M himself never reported any dissatisfaction from the Care Provider’s service.

The carer failing to use a portable heater

46. Miss L complains the carer did not place an available portable heater in Mr M’s room, during a period when the property’s heating had broken down and was awaiting repair. In the Care Provider’s response, it said the carer was unaware the heater was there, and had ensured Mr M was appropriately dressed and had hot drinks available while the heating was broken down.
47. Again, I cannot draw any firm conclusions on this. The carer said he did not know there was a heater available. I have no evidence to dispute this.
48. In any case, the carer’s role was to ensure the care plan was carried out, not to carry out general housekeeping tasks. It is a valid point that Miss L lived in the same property, and I would consider such matters were more properly for her to manage.
49. The Council has also raised a separate point, which is that leaving a portable heater active was a potential fire risk, and so it would not be appropriate for the carer to do this.
50. I find not fault in this element of the complaint.

Complaint handling

51. In its response to Miss L, the Council said the Care Provider had agreed to undertake some improvements to its complaint handling. This included setting up a dedicated line for complaints, to ensure they were not conflated with normal business, and allocating more resources to responding to complaints.
52. While it always positive for a care provider to make proactive improvements to its service, I must say I do not see any real cause for concern in the Care Provider’s handling of this matter.
53. For example, the chronology provided by the Council shows Miss L first raised her complaint with the Care Provider on 7 May 2019. The Care Provider acknowledged it on 9 May; passed it for investigation on 14 May; and the investigator made initial contact with Miss L on 3 June.
54. The investigator acknowledged the initial deadline of 24 May had been missed, but agreed an extension with Miss L. She then confirmed the investigation was completed on 12 June, and sent her findings to Miss L on 19 June. This was just over six weeks since Miss L raised her complaint.
55. This represents a very timely investigation, even accepting it missed the initial proposed deadline – which strikes me as a little unrealistic in any event.
56. And I have no concerns about the content of the Care Provider’s response. It is detailed, covering all the points Miss L raised, and gives clear and well-reasoned grounds for its decisions. I note also the investigator interviewed the carer as part of her investigation, which is good practice.
57. I appreciate Miss L did not agree with this, but, as I have found in my investigation, there is no objective evidence to support her complaints, nor to undermine Care Provider’s response.
58. In the months between then and Miss L’s approach to the Ombudsman, she tried to follow this up with a meeting with the Care Provider. The Care Provider was receptive to this, but unfortunately could not settle on a mutually workable date to meet Miss L.
59. This is unfortunate, but there is no obligation on the Care Provider to do this, especially as it had already given an adequate response to Miss L’s complaint. So I do not see this as a reason to find fault with the Care Provider.
60. My only criticism of the Care Provider’s response – and it is minor one – is that it included an apology to Miss L. This is despite the fact it had not upheld any of her complaints.
61. The Ombudsman’s Guidance on Remedies says:

“The body in jurisdiction may apologise in person or in writing, but in either case the apology must be made directly to the person affected using clear and plain language. It should not minimise or express any doubt about what happened: to be meaningful, it must both accept responsibility for the fault, and acknowledge the impact this had on the complainant. An apology should also include an assurance that the same fault will not happen again, and explain what steps have been taken to ensure this.”

62. In this case, the apology did not, and could not, meet the Ombudsman’s criteria for a meaningful apology. This is because there was neither fault, nor injustice, for it to recognise.
63. While I recognise the Care Provider’s apology was perhaps intended as a goodwill gesture, I find this counter-productive. It could be read to mean the Care Provider was recognising it had been at fault.
64. I do not propose to make a formal finding on this point, as it is not significant. But I would ask the Care Provider in future to give some consideration to the Ombudsman’s Guidance on Remedies (which is published on our website), when deciding whether an apology, or any other remedy, is appropriate.

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Summary

65. I find no evidence of fault in the standards of care provided to Mr M. He had capacity to make his own decisions about whether to eat sweets; there is no reason to believe the carer did not follow Mr M’s care plan with respect to the administration of medicine; and I accept it would not have been appropriate for the carer to use the portable heater, even if he had been aware of it.
66. I understand Miss L considers these matters contributed to Mr M’s death. Cause of death is a clinical matter, and neither the Care Provider, Council, nor Ombudsman is qualified to make such a judgement. Even if I had found fault here – which I have not – I could not say this led to Mr M’s death.
67. I also have no substantive criticism of the complaint handling here, which was timely and of good quality. I do not consider it helpful for the response to include an apology, but this is not a significant point.

Final decision

68. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman