Summary: The Care Provider, or those acting on its behalf, caused distress to Mr C’s family following the provision of ‘live in’ care at Mr C’s home. The Care Provider will apologise and make a payment in recognition to acknowledge the distress.

The complaint

1. The complainant, who I will call Mr B, says Bluebird Care had inadequate processes in place to keep their father (Mr C) safe. Mr B says the Care Provider was negligent, resulting in Mr C leaving the house alone in the middle of the night. Mr C was admitted to hospital with hypothermia. Mr B says the Care Provider has tried to blame the family rather than accepting fault. It has been very upsetting for Mr C’s family. Mr C’s two sons say they have had a lot of unnecessary time and trouble pursuing the complaint.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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

5. I considered information provided by Mr B and the Care Provider, including during telephone conversations with both parties.
6. 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.
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. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
8. Mr B and the Care Provider now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

9. Mr C had dementia. Mr C lived with his wife (Mrs C) who provided most of his care, Bluebird Care (the Care Provider) also helped him on a morning and evening. Mrs C went to hospital in an emergency, so Mr C needed more support to be safe at home.
10. Mr and Mrs C have two sons, Mr B and Mr D. Mr C’s daughter in law (Mrs D) contacted the Care Provider on a Saturday via its online chat function and asked for 24-hour care for Mr C. The Care Provider telephoned Mrs D and discussed ‘live in care’. I do not have a record of the discussion.
11. A ‘live in’ carer must sleep overnight, though can be expected to get up twice in the night to support if needed. If more care is needed overnight, then you would need a waking night carer rather than a sleeping night carer. Based on the information the Care Provider had, it assessed a sleeping night carer would meet Mr C’s needs. This was because it was only currently providing morning and bedtime calls, and there was no known waking night provision in place. The tasks for the ‘live in’ carer stated Mr C may need to be supported to the toilet overnight, a maximum of twice each night.
12. The Care Provider could not arrange the additional support over the weekend, so Mr B stayed with his father.
13. The Care Provider produced an interim care plan due to the sudden illness of Mrs C, Mr C’s usual care support. The interim care plan is based on minimum information available at the time, and concentrates on task-based outcomes, and would be updated within 72 hours.
14. The Care Provider arranged a meeting on Tuesday morning with Mr B and the ‘live in’ carer to assess Mr C’s needs and update the care plan. Unfortunately, this could not go ahead because the ‘live in’ carer was ill, the Care Provider found another carer and had a meeting later in the day at which Mrs D was present rather than Mr B.
15. The Care Provider and family have differing views on what was discussed and agreed during the assessment meeting about the use of a video monitor, door keys, and overnight requirements. There are also differing views about how rushed the assessment seemed, and how a member of staff took telephone calls from their family and seemed keen to get away. There are no written records available.
16. The Care Provider used a carer from an agency rather than a member of its own staff. It gave the agency carer clear instructions regarding what was required for live in care, including contacting a manager about any concerns, which the carer signed.
17. A few hours after the care package with the ‘live in’ carer (the carer) started, the carer called Mrs D to say Mr C was refusing care and did not want to go up to bed. Mrs D confirmed this was relatively normal and that it was ok for Mr C to stay downstairs in his chair. A few hours later the carer called Mrs D and said she had heard a noise downstairs. Mrs D said they were not expecting any visitors at the house, and if the door was locked then it should be ok. The carer never went downstairs to check on Mr C or establish what caused the noise. The carer went to sleep, leaving Mr C downstairs alone having not had any personal care or support because he refused it. Therefore, Mr C was still in his daytime clothes and had not had his continence pad changed. As well as contacting Mrs D the carer had also contacted the Care Provider’s ‘on call handler’ who offered advise on what to do as Mr C was refusing care. The carer failed to update the ‘on call handler’ and the ‘on call handler’ failed to follow process and escalate the matter when the system alerts would show Mr C had not had personal care and continence care completed by 10pm.
18. The carer had locked the doors but had left the keys in the locks, which the carer says was agreed with Mrs D. Mr C had exited the house and was found by a neighbour several hours later. An ambulance took Mr C to hospital, and he was treated for hypothermia. The incident happened in winter, on an extremely cold night. Mr C was discharged from hospital to a care home and died two months later.
19. The Care Provider promptly notified the Care Quality Commission and the Local Authority Safeguarding team of the incident and completed a thorough investigation internally. The safeguarding investigation substantiated a finding of neglect against three individuals. The Care Provider accepted the finding of neglect against the ‘live in’ carer, but not about the other two members of staff.
20. The family are concerned the lift Mr C used to get upstairs was stopped part way. The family say Mr C could only use the controls inside the lift and not the control panel on the wall. The family say Mr C would have difficulty even reaching the control panel on the wall due to the walking aid he used. The family’s assumption is that the carer purposefully left the lift part way to prevent Mr C getting upstairs. The carer says the lift was in the downstairs position when she went up to bed, she did not use the lift or hear the lift being used while she was upstairs and cannot say how it got to that position. The Care Provider and the safeguarding investigation were unable to conclude on this point.
21. The Care Provider and the safeguarding investigation concluded there was neglect by the carer. The carer was referred to the Disclosure and Barring service, and the Care Provider will now only use carers from that agency which it knows and trusts.
22. The Care Provider accepted staff had not followed the policies and procedures in place. The Care Provider made some changes to make its procedures more robust and provided some training to the relevant members of staff. The Care Provider gave a statement to the Local Authority in response to the conclusion of the safeguarding investigation to be shared with the family. This statement included an apology and an explanation of the steps the Care Provider had taken following the learning from the incident. The Local Authority failed to share this with Mr B and Mr D, but the Care Provider did not know this.
23. The family feel the Care Provider has placed much of the blame on them and deflected responsibility away from itself. Mr B complained to the Care Provider, who responded to say the concerns were fully investigated by the safeguarding process. The Care Provider asked Mr B to clarify what outcomes, actions, or resolution he was seeking so that it could address the matter further and gave the Ombudsman’s details for escalation of the complaint. Mr B did not respond to the Care Provider and referred his complaint to the Ombudsman.

Did the Care Provider’s actions cause injustice?

24. I must now consider whether the actions of the Care Provider caused injustice. Mr C has since died, so the Ombudsman cannot consider his injustice, but can consider any injustice to the family.
25. Mrs D’s contact with the Care Provider following Mrs C’s accident clearly stated the family felt they needed 24-hour care for Mr C. This indicates care through the day and night. The Care Provider’s actions in not fully explaining what ‘live in’ care covered and the difference between sleeping and waking night care causes the family some injustice. The family are left feeling they did not get the service they wanted. Having said that the family were aware that there was only one carer and must have had an expectation that the carer would sleep through the night and only get up as required, which is the service that was provided. There is no evidence the family told the Care Provider the carer would need to make timed checks on Mr C through the night or needed to set an alarm as Mr B had done. There is also no evidence the Care Provider asked about Mr C’s behaviour overnight, and how often he might wake and need support through the night as to how it assessed he would not need support more than twice in a night. I consider it more likely than not that had full discussion taken place, the outcome would be the same that a provision of a live-in carer would be the most likely support.
26. There is no evidence to show exactly what was discussed and agreed about Mr C’s care needs and how they would be met while Mrs C was in hospital. The Care Provider says it now ensures to give written information about ‘live in’ care rather than only the verbal explanation that was given in this case. The Care Provider has produced a live-in care guide as separate customer information, so it now has clear written information to give to customers to ensure they understand what is covered by live in care.
27. There are no contemporaneous records to show what was discussed and agreed at the time of the Care Provider’s assessment when it introduced the ‘live in’ carer to the family. It is one person’s word against another and there is nothing to make me think one is more likely than the other, so I cannot form a view. I cannot say it was wrong of the carer to leave the key in the door and to not use the monitor.
28. One of the Care Quality Commission’s fundamental standards is ‘Good governance’ which includes keeping accurate, complete, and contemporaneous records about decisions taken in relation to the care and treatment to be provided. The Care Provider’s failure to keep accurate and complete records of what was discussed and agreed may be a breach of the CQC fundamental standards.
29. The Care Provider says different members of a support network may have differing knowledge. As a learning from this complaint the Care Provider has introduced standardised questions about security and wandering of customers to be used at all assessments and reviews. The Care Provider does not think it would have changed the assessment of need in this case.
30. This is where the family feel the Care Provider is blaming them, because the Care Provider says it worked on the information given to it by Mrs D. The family are also upset that the Care Provider says it was neglect by the agency carer, but not by members of its staff. The Care Provider explains it was not its intention to ‘blame’ the family. The statement the Care Provider wrote but which the family did not receive clearly stated it is it not indicative of apportioning blame or responsibility. The Care Provider feels that where family members work as a collective unit to provide best care for loved ones, any ambiguity and interpretation between members can cause ambiguity in assessments.
31. I recognise there was information from Mr B that he was getting up through the night when he stayed with Mr C, which was not relayed to the Care Provider until during the safeguarding investigation. It is this sort of information the Care Provider is highlighting can be missed by different knowledge of individuals within the support network. What one person thinks is important and relevant information to share, another person may not. Therefore, the standard questions the Care Provider has introduced will help ensure it gathers relevant and consistent information to assess needs.
32. However, this would not have prevented the incident in this case as Mr C exited the house before overnight care was necessary. The carer and the ‘on call handler’ failed to follow the procedures in place to highlight Mr C had not received the assessed care. The carer did not go downstairs and check on Mr C after she heard a noise. There was an alarm sensor on the door, and it would be a reasonable expectation that the carer should have heard it and checked.
33. Any actions of staff, including agency staff, are actions on behalf of the Care Provider. The Care Provider remains responsible for meeting the client’s needs. Therefore, the actions of the Care Provider have caused injustice to the family. It was highly distressing for Mr C’s family to find he had exited the house, been outside for hours on a freezing cold night, and needed hospital treatment. The family are still upset by the incident; having to undergo the safeguarding process and complaint process means constantly reliving the experience. The family will never know if the incident would have been prevented if staff had followed the correct procedures.
34. Mr C subsequently died, which has clearly caused significant distress to the family. I cannot say Mr C’s death was caused by the actions of the Care Provider, and therefore the distress caused by Mr C’s death is not distress caused by the actions of the Care Provider. Dealing with the safeguarding and complaints procedures at a time they were mourning a close relative will undoubtedly have been difficult and added an extra layer of distress, which might have been avoided had staff followed the correct procedures.
35. I cannot reach a conclusion on the issue of the lift. I accept Mr C was not known to have ever used the control panel on the wall, but I cannot say on this occasion he did not attempt to use it. It is impossible for me to say the actions of the Care Provider resulted in the stuck lift.
36. Following the incident, the Care Provider acted correctly to refer the concerns to the Care Quality Commission and the Local Authority safeguarding team. The Care Provider completed a thorough investigation and engaged with the Local Authority safeguarding enquiry. The Care Provider amended existing procedures to make them more robust to reflect the learnings and to reduce the risk of this type of incident occurring again. The Care Provider carried out relevant staff training to enforce the learning and communicate any changes of process.
37. Despite this the family remain dissatisfied because they say the Care Provider references them not booking the right kind of care, not giving appropriate information, and that the Care Provider has blamed the carer who was not directly in its employ. The family say they have not had an apology or confirmation of what actions were taken following the outcome of the investigations. The Care Provider gave the Local Authority a statement to give to the family which explained the findings and gave an apology for the poor decision making by the agency staff in its employ and for the incident that occurred. The Local Authority failed to share this with the family; I have done so. It is regrettable this was not shared by the Local Authority as it might have helped the family to receive the apology and learning outcomes at that time.
38. When Mr B made his complaint to the Care Provider it asked what the family wanted as outcomes, actions and resolution, Mr B did not reply. This would have been an opportunity to highlight the family had not had the apology and explanation they were seeking, and the Care Provider could have then supplied it.
39. The actions of the Care Provider and/or its agent in not providing clear information about ‘live in’ care, and its staff failing to follow the procedures in place when Mr C refused care, has caused distress to his family.

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Agreed action

40. When a Care Provider commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of an individual not directly in the employ of the Care Provider, I have made recommendations to the Care Provider.
41. To acknowledge the impact on Mr C’s family the Care Provider will:
1. Apologise to the family for the failings identified in paragraph 39.
2. Pay the family £1000 to acknowledge the distress suffered.
42. The Care Provider should complete the recommended actions within one month of the final decision and provide evidence of its compliance to the Ombudsman.

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Final decision

43. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B and the rest of the family. Unfortunately, we will never be able to answer for them exactly what happened that night, and nothing can fully reflect the impact on them.
44. Under our information sharing agreement, I have shared this final decision with the Care Quality Commission.

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Investigator's decision on behalf of the Ombudsman