The Ombudsman's final decision:
Summary: Mrs X complained about the home care service provided by Promedica24 (Lancashire) Limited. We have found fault because Mrs X was not provided with person-centred care that was suitable for a person with dementia. We cannot say this caused a deterioration in Mrs X’s health, but we are satisfied it caused distress to Mrs X that requires a remedy. To remedy this injustice, Promedica24 (Lancashire) Limited has agreed to apologise, cancel notice period charges, and make a payment to Mrs X. It has also agreed to ensure appropriate training is provided to the relevant personnel.
- Mrs X complains about the poor standard of dementia-appropriate care provided by Promedica24 Limited (“the Care Agency”).
- She says this led to a deterioration in her well-being that led to her needing residential care and caused considerable distress to her and her family.
- Mrs X is represented by her daughter, Mrs B, in making this complaint.
The Ombudsman’s role and powers
- 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)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission.
- 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.
How I considered this complaint
- As part of my investigation, I have;
- considered the complaint and documents provided by Mrs B;
- made enquiries of the Care Agency and considered its response;
- considered the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This provides the statutory basis for the requirements placed on care providers; and
- shared a draft version of this statement with Mrs B and the Care Agency and invited comments. I have taken comments received into consideration before making my final decision
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance). We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
- Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
- Regulation 10 of the 2014 Regulations requires a care provider to ensure those receiving a service are treated with respect and dignity at all times. Staff must respect people’s personal preferences, lifestyle and care choices. All reasonable efforts should be made to make sure that discussions about care treatment and support can only take place where they cannot be overheard.
- Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.
- Regulation 19 of the 2014 Regulations requires a care provider to make sure they only employ “fit and proper” staff to provide care. They must have procedures in place to monitor staff and deal with staff who are no longer fit to carry out required duties.
- Mrs X is in her 90’s and has dementia. At the time relevant to this complaint, she was supported to continue to live at home, as independently as possible, with the help of a live-in carer supplied by the Care Agency. This arrangement had worked well since July 2019.
- In early December 2019, a new carer (“Carer Y”) was assigned by the Care Agency to provide live-in care to Mrs X. It was a fixed term placement for five weeks.
- After five days, Mrs B contacted the Care Agency about Carer Y. She felt that Carer Y was overly concerned with health and safety issues. For example, she requested soft corners to be put on kitchen cupboards. Mrs B felt that any risk of injury should be managed through supervision instead. The Care Agency agreed, and a supervisor spoke to Carer Y about this issue
- As the weeks passed, Mrs B became more concerned about the care provided by Carer Y. In particular, that she:
- was too stimulating for Mrs X.
- was indiscreet when talking about personal issues relating to Mrs X.
- was not keeping to a routine.
- required too much supervision and feedback from Mrs B.
- had returned late from her break without notifying anyone.
- Mrs B says matters came to head over the festive period.
- On Christmas night, Mrs B says she was contacted by Carer Y several times because she was unable to cope with Mrs X. Mrs B had to attend the next morning to support Carer Y, check on Mrs X and provide Carer Y with a break. Mrs B says this was “the final straw” and led to her making the decision to request a different carer.
- On 27 December 2019, Mrs B emailed the Care Agency. She said, “Mrs X and Carer Y do not seem to be coping well with each other. Mum’s behaviour in the evening and night is increasingly difficult and Carer Y is struggling to cope and we have little confidence now in her ability to manage the situation. It is difficult to know if it is just mother’s dementia increasing, or if she is escalating in her behaviour because of her relationship with Carer Y”.
- Mrs B requested a replacement carer. The Care Agency started this process straight away.
- Three days later, a supervisor (“Supervisor D”) from the Care Agency went to observe Carer Y with Mrs X. Her note of this visit stated, “I found Carer Y to be great at promoting independence skills, they both seemed to get on ok, but Carer Y was so busy talking she hadn’t got time to listen to what I was advising her.”
- It was agreed that Carer Y was not suited to Mrs X and the Care Agency arranged a replacement carer (“Carer P”) to take over in early January 2020.
- On New Year’s Eve, Mrs B says she returned home from a party to several texts from Carer Y saying Mrs X was upset because she had no family contact at midnight. Carer Y later recorded this in the case notes as Mrs X felt “neglected”. Mrs B says this ruined her night and it was inappropriate to keep Mrs X awake until midnight, when she would not normally do so on New Year’s Eve. Mrs B says this was not person-centred care, rather Carer Y projecting her own values and aspirations about New Year’s Eve on Mrs X.
- On 2 January 2020, Mrs B’s husband visited Mrs X at 1pm to find her having a bath, having only just got up. Carer Y was busy making phone calls about a missing dog in Poland and had been all morning. Mrs B says this was totally inappropriate because she was not focused on her caring responsibilities. Mrs B raised this concern with the Care Agency as a possible safeguarding incident. The Care Agency said it would investigate.
- Supervisor D visited the next day and asked to see the daily care records. Carer Y said they had not been written up, but she had planned to do them that day. The supervisor discussed concerns raised by Mrs B. Supervisor D’s note of that conversation was, “all the time she was telling me how interested in the dog Mrs X was. Which wasn’t my point. I came away feeling that Mrs X was probably being over stimulated, over talked to, and the house just felt chaotic, busy and noisy, even though it wasn’t”.
- Supervisor D carried out checks regarding Mrs X’s fluid and medications the previous day. She was satisfied Mrs X had not been neglected. The handover arrangements for Carer P were discussed.
- There was a further incident on 4 January 2020. Mrs B says she was again contacted by Carer Y because she was unable to cope with Mrs X. Mrs B had to attend and resolve the situation. Mrs B says Carer Y was employed to be able to deal with the sometimes unusual behaviour of a person with dementia. The situation continued the following day. Mrs B has described, “being bombarded by texts” and had no choice but to take special leave from work to again attend to Mrs X.
- Mrs B has described the handover day as “chaotic”. Carer P arrived but Carer Y was unable to participate in any handover duties because she was busy writing case records for the days she had missed. Mrs B says she had to spend some time with Carer P reassuring her that she should stay.
- On 6 January 2020, Mrs B lodged a formal complaint with the Care Agency.
- Two days later Mrs B decided it would be best for her mother to move to residential care and so cancelled the contract with the Care Agency.
- Carer P left on 8 January 2020. Under the Care Agency’s standard terms and conditions, Mrs X was contractually bound to give four weeks’ notice of cancellation and was charged until 8 February 2020. Mrs B refused to pay this invoice.
The Care Agency’s response to Mrs B’s complaint
- It agreed Carer Y acted unprofessionally on the changeover day. The Care Agency agreed not to invoice Mrs X for that day.
- It agreed Carer Y had returned late from her break on one occasion. The Care Agency apologised and made a goodwill gesture of £20. The Care Agency said there was no evidence of Carer Y returning late on other occasions.
- Mrs B had only raised concerns about Carer Y on one occasion in early December 2019 and this was about her approach to health and safety. Mrs B had not raised any other concerns until 27 December 2019. The Care Agency did not consider this to be an official complaint because Mrs B said she was unable to determine whether the change in Mrs X was related to her dementia or as a result of Carer Y’s conduct.
- The Care Agency found no evidence to support Mrs B’s complaint that there was a “constructive neglect of duty of care”. Following Mrs B’s concerns raised on 27 December 2019, Supervisor D carried out a home visit. She found Carer Y to be properly engaging with Mrs X but that she would become unsettled at night which was common with people, with dementia.
- While the Care Agency agreed that Carer Y was “full on”, this in itself, did not constitute neglect.
Carer Y and the Care Agency’s response to enquiries by the Ombudsman
- Carer Y had a different version of events to that of Mrs B. She provided a detailed written statement that I have summarised below.
- She only contacted Mrs B when Mrs X was anxious and wanted to see her family, for example on New Year’s Eve. She also sent photos of activities at the start to show they were engaging in because she thought Mrs B would want to see them.
- Carer Y denied the allegation made about discussing private matters, being overstimulating and being overly concerned with health and safety issues.
- Carer Y said Mrs X had not been ready to go to bed at 10pm. Being upstairs brought back unsettling memories for her that led to her moving furniture. Carer Y therefore encouraged Mrs X to stay downstairs and kept her occupied to avoid this. Because Mrs X went to bed later she was then not ready to get up at the time expected by Mrs B. Carer Y said that had she known Mrs B was so concerned about this, she would have woken Mrs X up earlier. She also felt it was unfair to single out what happened on New Year’s Day because it was usual to go to bed later the previous night.
- Carer Y agreed she had been busy trying to remotely locate the owner of the dog found by her brother in Poland. But Carer Y said Mrs X was both interested and involved with helping her. Carer Y said she was able to multitask and for Mrs X it was a meaningful activity.
- Mrs B had given verbal consent for photographs to be taken. Carer Y had deleted photographs when asked to by Mrs B.
- Carer Y said Mrs B was inconsistent and changed her mind about what she wanted Carer Y to do.
- In response to concerns raised about her poor record keeping, Carer Y says she kept a contemporaneous note on her mobile phone that she wrote up at a later date. This was because she had a hand skin condition.
- Mrs B had not previously raised concerns about privacy issues.
- It agreed that Carer Y’s character could be overstimulating to someone with dementia.
- Regarding the dog incident, it was investigated at the time whether Mrs X had received food and water. Carer Y’s account was consistent with the sensors. The care plan did not address bath safety issues as it said she had a strip wash.
- It acknowledged that nighttime disturbances did not occur until Carer Y was in post.
- Carer Y did not maintain records in accordance with company policy. When this was discovered, Carer Y was asked to complete the missing records.
- It was not considered problematic that photographs were taken, in the context they were.
- The Carew Agency offered to cancel 50% of the outstanding notice period charges. This was not accepted by Mrs B.
- My role is to consider whether the Care Agency’s actions amounted to a service failure and in turn caused Mrs X an injustice. To reach my decision about this, I have considered the main issues that gave rise to Mrs X’s complaint.
- I cannot know exactly how Carer Y behaved at the time she cared for Mrs X. However, Mrs B has provided a detailed verbal and written account of incidents that occurred and gave reason for her to be concerned. I have also been provided with a similarly detailed written statement from Carer Y setting out her recollection of events.
- Carer Y was satisfied with the service she provided and denied most of the allegations made against her. She accepted there was fault with her record keeping but described it as “not seriously breaking any rules”.
- The Care Agency has provided an account of its responses to Mrs B’s concerns/complaints, including its own contemporaneous assessments of Carer Y when the supervisor visited Mrs X at home and witnessed Carer Y in the home environment.
- Mrs B says Carer Y breached Mrs X’s right to privacy and dignity by discussing personal and embarrassing care matters with Mrs B within earshot of Mrs X. She also took numerous photos on her phone and included Mrs X in video calls to her family in Poland.
- Carer Y has strenuously denied any breach of Mrs X’s privacy or dignity. The Care Agency has considered the context of the photos and video call and also rejects Mrs B’s allegations.
- I have considered all the available evidence and other than the information in Mrs B’s complaint, I can find no evidence to support her assertion that Carer Y acted without discretion. I accept I would not necessarily expect to find such evidence, particularly in Carer Y’s own case notes. However, the Ombudsman makes decisions on the balance of probabilities. This issue relates to one person’s word against another. I have no independent witness. As I am unable to prefer one account over another, I am unable to make a finding on this part of the complaint.
- Similarly, I do not consider the texts, phone call and video calls amount to a breach of Mrs B's dignity and privacy. Evidentially, the parties are generally in agreement about what happened. Carer Y agreed she made many phone calls and texts and she explained the reasons for doing so. While I understand it would have been preferable to Mrs B for Carer Y to have carried out her duties without the need for such a level of reassurance, Carer Y was under the impression, at least initially, that this interaction was welcomed by Mrs B.
- I accept this may have been more out of necessity, politeness and encouragement rather than by choice on Mrs B’s part. However, I must take into consideration the placement was still its infancy. Had the level of contact persisted for many weeks, this could have amounted to fault. As it stands however, I do not find fault here.
Inadequate response to complaint about Carer Y’s timekeeping
- Mrs B has also complained about the Care Agency’s inadequate response to her complaint about Carer Y failing to inform anyone when she was late returning from her break.
- This led to the cover care provider charging extra. While the Care Agency paid Mrs X £20 as a goodwill gesture, she remained unhappy because she was not satisfied the Care Agency appreciated the potential seriousness of the matter.
- I agree with Mrs B that this was a potentially serious matter for two reasons:
- Carer Y did not notify anyone that she was late and she should have done.
- It was only because the cover carer was able to stay late, that Mrs X was provided with care. Had the carer had to leave on time, Mrs X could have been left in a vulnerable position.
- The Care Agency has accepted there was fault by Carer Y and so this is not in dispute. While I understand Mrs B’s concerns about the response from the Care Agency, I do not consider it necessary to make any further finding of fault here. This is because the fault has been acknowledged and a remedy offered. Any further investigation by the Ombudsman could not achieve anything more for Mrs X.
Standard of care provided
- The Care Agency’s Service User Guide sets out its service standards. One of these is “to ensure that you and your Care Worker are ‘matched’ as closely as possible in order that a healthy and boundaried relationship should develop”.
- I have had sight of an email Mrs B wrote to the Care Agency in September 2019, prior to the departure of a previous carer. She said, “….a more mature carer with experience of working with people with dementia is more what we are looking for to meet mum’s needs”.
- In reaching my decision about this aspect of the complaint, I have taken into consideration Carer Y’s own statement about what happened on changeover day and New Year’s Eve. She said, “New Year Celebration is once per year and everybody has longer sleep then. That is normal for me”.
- This statement demonstrates a lack of awareness and understanding of the specialist needs of someone with dementia. Carer Y may have felt that Mrs X may have welcomed a more relaxed approach to routine. She may have genuinely felt that she was respecting Mrs X’s wishes in staying up late or involving her in the dog incident. But, she had been given instructions to follow in approaching Mrs X’s care and with dementia patients, it is generally understood that it is important to follow a routine.
- In respect of record keeping she said, “I didn’t break seriously any rules, only rewriting records…with a little delay”. The notes she wrote on the change over day were clearly done so in a hurry. They are virtually illegible and so are not fit for the purpose. This failure to keep a daily record is in breach of both the Care Agency’s standards and Regulation 17. Carer Y again demonstrated a concerning lack of understanding of the importance of record keeping by minimising the significance of them.
- I note the Care Agency instructed Carer Y to complete the missing records as soon as it became aware of the problem, but it should not have happened in the first place.
- Events that took place between Christmas Day and Carer Y’s departure date also form part of the Mrs X’s complaint. Taken in isolation, for example, the change of routine on New Year’s Day, they may not seem significant But when considered as a whole, I am satisfied Carer Y’s actions did not meet the standards expected by the Regulations or the Care Agency’s own service standards.
- On New Year’s Eve, it was reasonable for Mrs B to have expected Carer Y to have managed her mother’s care, particularly as she knew Mrs X would not normally stay up so late. Carer Y effectively imposed her own New Year celebrations on Mrs X which had the knock-on effect of disrupting her routine the next day. This was demonstrated by her recording in the case notes that Mrs X felt neglected. This was both unnecessary and unprofessional.
- I also agree with Mrs B that Carer Y’s care fell below the required standard during the dog incident.
- Carer Y provided the Ombudsman with a detailed account of the dog incident. In my view, this also demonstrated poor insight into the impact the diversion could have had on Mrs X’s welfare. While I can appreciate Carer Y’s enthusiasm for helping the dog, I am satisfied that, on balance, she was not properly focussed on Mrs X’s welfare because of this distraction. Mrs X was in the bath unattended when Mrs B’s husband arrived. Mrs X’s care plan did not refer to Mrs X having a bath, instead preferring a strip wash. This means the bath had not been risk- assessed. Carer Y should have been aware of this and not allowed Mrs X to be unsupervised.
- However, I am satisfied the Care Agency took Mrs B’s complaint about this seriously and investigated what had happened as soon as it was brought to its attention. It concluded it did not meet the threshold to be considered a safeguarding incident. This was a professional judgement the Care Agency was entitled to make and it is not the role of the Ombudsman to interfere with such decisions as long as they are made properly. I am satisfied it was in this case.
- I am also satisfied that Carer Y acted unprofessionally in her attitude to the changes to Mrs X’s routine. The records confirm Mrs X was getting up later and later. Carer Y says this is because she was responding to Mrs X’s preferences to stay up later and get up later. But this approach failed to take into consideration Mrs X’s dementia, her need for routine and clear instructions given by Mrs B.
- To the Care Agency’s credit, soon after this was raised as an issue by Mrs B a manager came to assess the situation. But as the supervisor’s note confirmed, Carer Y did not appear to have taken on board what she was being told.
- The Care Agency has accepted Carer Y acted unprofessionally on the changeover day and has not charged for this day. While the Ombudsman does not routinely reinvestigate matters where fault has been accepted, I consider what happened on this day confirms and supports the view held by Mrs X about Carer Y’s lack of insight and the inability to act professionally and in the best interests of her client.
- It is clear from the records I have seen that there was a change in Mrs X’s presentation towards the end of December 2019. This mainly manifested itself at night. This led to Carer Y making a number of calls and texts to Mrs B and her husband late at night. I am aware that Mrs X feels that her mother’s sudden deterioration was a direct result of the disruption caused by Carer Y. But Mrs X had dementia and it is possible her behaviour changed for other reasons, unrelated to Carer Y. Mrs B has herself accepted this in her email to the Care Agency from 27 December 2019.
- The records also confirm that Carer Y was alert to some of the changes in Mrs X’s behaviour, and so contacted Mrs B. I cannot say this was an unreasonable course of action. Indeed, I accept Carer Y could have been criticised for not contacted Mrs X’s family in such a situation.
In conclusion, for the reasons set out above, the care provided to Mrs X, on occasions, fell below the standard expected. This is fault. I am also satisfied this caused an injustice to Mrs X. I cannot say this definitely caused a deterioration in Mrs X’s state of health, but from the evidence I have seen, I am satisfied that it is likely the disruption to her daily routine may have meant she experienced some distress and anxiety that requires a remedy (below).
- Within one month from the date of my final decision, the Care Agency has agreed to take the following action:
- Apologise in writing to Mrs X and Mrs B.
- Cancel the unpaid invoice for the 28 day notice period.
- Pay Mrs X £250. This is a symbolic payment to reflect the problems that arose during the festive period.
- Ensure Carer Y has sight of this decision statement and identify any training needs that are required as a result.
- I have found some fault and have recommended a suitable remedy. I have therefore completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman