Summary: We found fault by a care provider with regards to its failure to properly assess Mrs K’s ability to make key decisions about her care. We also found fault by the care provider as it failed to notify Mrs K’s family when she suffered a fall and did not seek their input about what should happen next. The care provider agreed to apologise to Mrs K’s son, Mr J, and pay a financial remedy in recognition of the distress these events caused him. The care provider will also take action to prevent similar problems occurring in future.

The complaint

1. The complainant, who I call Mr J, is complaining about the care provided to his mother, Mrs K, by Rainbow Direct Care Ltd (the care provider).
2. Mr J complains that the care provider failed to take action to prevent Mrs K from falling. In addition, he says care provider staff delayed in seeking emergency care for Mrs K and did not inform the family that she had suffered a fall. Furthermore, Mr J says the care provider failed to provide him with relevant records when he requested these.
3. Mr J says his mother is now bed-bound because of the fall and no longer has her previous level of mobility. Mr J says this has been significantly distressing for him.
4. Mr J would like the Ombudsman to complete an independent investigation and make recommendations to prevent similar problems occurring for other people.

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The Ombudsmen’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
7. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

8. I have investigated Mr J’s complaints about the care provider.
9. In response to my initial enquiries, West Northamptonshire Council (the Council) confirmed that it was not involved in arranging or funding Mrs K’s care package as I had originally understood was the case.
10. The Council was involved in carrying out safeguarding enquiries in relation to Mrs K’s fall. However, when I spoke to Mr J, he confirmed that he does not wish to pursue a complaint about the safeguarding process.
11. As a result, I did not investigate any matters relating to care or services provided by the Council.

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How I considered this complaint

12. In making my final decision, I considered information provided by Mr J and discussed the complaint with him. I also considered relevant comments and documentation from the Council and care provider. I took account of relevant legislation and guidance. I invited comments on my draft decision statement from all parties and considered the responses I received.

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What I found

Relevant guidance and legislation

Mental Capacity Act 2005

13. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
14. A person’s mental capacity refers to their ability to make a particular decision at the time it needs to be made.
15. The Code emphasises the importance of taking all practical and appropriate steps to support a person to make their own decisions where possible. This support will vary according to the person’s individual needs. It may include seeking input from family members who know the person well and can assist with communication.
16. If a person is found to lack capacity to make a specific decision, a key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
17. Chapter 5 of the Code provides guidance on how to work out the best interests of a person who lacks capacity. The Code says this process should include consulting with “close relatives, friends or others who take an interest in the person’s welfare” if it is “practical and appropriate” to do so.

Background

18. Mrs K was discharged home from hospital in October 2021. Her family arranged for her to have 24-hour support at home from the care provider.
19. At the time of Mrs K’s return from hospital, the care provider completed a Mental Capacity Assessment for Mrs K. This concluded she did not have capacity at that time to make decisions about her care. The assessment noted that Mrs K relied upon support from Mr J to make decisions.
20. Mrs K suffered a fall on 18 November. There are some disparities in the records regarding exact timings for the events of that day. The contemporaneous incident reports provide approximate timings. However, in its complaints correspondence, the care provider refers to different timings, which it says were taken from staff as part of its investigation. To reflect this, I have referred below to a time range, rather than a specific time, for each event.
21. Between 5.00am and 5.15am, Mrs K suffered an unwitnessed fall while a care worker was out of the room. The care worker found Mrs K attempting to get up. The care worker checked Mrs K and found no visible sign of injury. She asked Mrs K whether she was hurt, and Mrs K said she was not. The care worker asked Mrs K if she would like her to call a paramedic, but she declined.
22. Later that morning, another care worker came on shift. Between 6.20am and 7.00am, following a handover with the previous care worker, she checked on Mrs K. She noticed bruising had begun to appear on Mrs K’s forehead and right knee. Mrs K was also complaining of back pain. However, she again declined an ambulance. The care worker administered pain relief and Mrs K went to sleep.
23. Between 10.00am and 10.20am, the care worker found Mrs K was attempting to get out of bed but was unable to do so. The care worker called emergency services and gave Mrs K some food while they waited for paramedics to arrive.
24. At some point after 1.00pm, a district nurse arrived for a routine visit. The district nurse notified Mr J that Mrs K had suffered a fall.
25. The paramedics arrived at around 3.30pm and transported Mrs K to hospital at around 4.40pm.

Care records

26. It is important to note that some of the care records for Mrs K are no longer available. These include the daily care notes, which recorded details of Mrs K’s day-to-day care.
27. The care provider says the care notes were kept at Mrs K’s property. It says that, following Mrs K’s fall, care staff had no further access to the property and so were unable to recover the care notes.
28. However, Mr J says that, when the family cleared Mrs K’s property after she went into a care home, they did not find any care records. Mr J says the records have never been in the family’s possession.
29. In the absence of any further evidence, I am unable to say what happened to the missing records.

Falls management

30. On commencement of Mrs K’s care package, the care provider completed a falls risk assessment. This found her to be at high risk of falls, due largely to her poor cognition.
31. The care provider completed a care plan for Mrs K. This referred to her experiencing confusion, delirium and hallucinations. The care plan noted that, care staff should record and report any falls and refer to the GP or emergency services as necessary.
32. The care provider also completed a specific trips and falls care plan for Mrs K. This noted that Mrs K required care workers to support her to transfer safely to and from her bed and chair. The plan reminded care workers to ensure Mrs K was safe to transfer and that there were no obstacles in her way when she was moving around with her walking frame.
33. It is not possible to entirely eliminate the risk of falls. The evidence I have seen suggests Mrs K’s fall occurred when a care worker was briefly in another room. This was an unfortunate accident and was not a result of poor falls management by the care provider. I am satisfied the care provider appropriately assessed Mrs K’s risk of falls and completed falls care plan to manage this risk. I found no fault by the care provider in this regard.

Delay calling an ambulance

34. The available records show Mrs K fell between 5.00am and 5.15am. However, it was not until between 10.00am and 10.20am that a care worker called for an ambulance. This was around five hours after Mrs K’s fall.
35. Care workers twice (at around 5.15am and at around 7.00am) asked whether Mrs K wanted them to call an ambulance. On both occasions, Mrs K declined. The care workers appear to have been content to accept Mrs K’s decision.
36. The Mental Capacity Act 2005 works on the guiding principle that a person is considered to have capacity to make a decision unless it is established otherwise.
37. However, there were documented doubts about Mrs K’s capacity to make decisions about her care. Specifically, the capacity assessment undertaken by the care provider on 20 October 2021 found Mrs K lacked capacity to make key decisions. The assessment noted that Mrs K “relies on the support of [her son] to make decisions.” This should have led care workers to consider whether Mrs K had capacity to decide to refuse an ambulance.
38. Section 4.44 of the Code makes clear that care workers do not have to be experts in assessing capacity. They only need to have a “reasonable belief” that the person they are caring for lacks capacity. In order to have this “reasonable belief” they must have taken “reasonable” steps to establish the person lacks capacity to make a specific decision.
39. The steps that are accepted as reasonable will depend on individual circumstances and the urgency of the decision in question. This may include contacting family members for advice. The evidence I have seen shows Mr J played a key role in supporting Mrs K to make important decisions. Despite this, neither care worker contacted Mr J for his input. Indeed, Mr J only became aware of the fall through a district nurse who was visiting Mrs K for a routine appointment.
40. In my view, this is attributable to omissions in the care planning documentation. The first page of Mrs K’s care plan contained a box for any notes relating to her capacity. However, this was left blank. This should have been completed to reflect the findings of the capacity assessment. This may have prompted care workers to more carefully consider Mrs K’s capacity to make decisions about her care.
41. Furthermore, the care plan contains no detail about when care workers should contact Mrs K’s family or details for how they could do so. This information should have been included, particularly given the capacity assessment specifically highlighted Mr J’s role in Mrs K’s care. Again, this would likely have prompted care workers to seek input from Mrs K’s family.
42. In summary, I have seen no evidence to suggest the care provider properly considered Mrs K’s capacity to make the important decision to refuse an ambulance. Furthermore, the available records suggest care workers failed to communicate with Mrs K’s family or involve them in the decision-making process. This was fault by the care provider.
43. I am unable to say whether there would have been a significantly different outcome even if the fault I have identified had not occurred. This is because I cannot say what would have happened if care workers had properly considered Mrs K’s capacity and consulted with her family. I also note that, when care workers did eventually call an ambulance, the call was not classified as urgent. This meant it took several hours for an ambulance to attend Mrs K’s property in any case.
44. Nevertheless, I recognise these events have left Mr J with significant distress and uncertainty as to whether the outcome of Mrs K’s care would have been different if the care provider had called an ambulance sooner than it did.

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Agreed actions

45. Within one month of my final decision statement, the care provider will:

• write to Mr J to apologise for the distress and uncertainty caused to him by its failure to properly consider Mrs K’s capacity and consult the family after she suffered a fall; and
• pay Mr J £200 in recognition of the distress and uncertainty this caused him.

46. Within two months of my final decision, the care provider will write to the Ombudsmen to explain what action it will take, or has taken, to:

• ensure care workers are familiar with the provisions of the Mental Capacity Act 2005 and how this applies to service users with cognitive impairments that may affect their ability to make key decisions about their care;
• ensure care workers understand the importance, where practicable, of consulting family members and carers regarding service users’ care needs and wishes; and
• ensure care planning documentation is accurate, person-centred, and up to date. This means a service user’s care plan should contain relevant information about that person’s mental capacity. It should also include details for when, and how, care workers should contact the person’s family or carer to seek input into their care needs.

47. The care provider will provide us with evidence it has complied with the above actions.

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Final decision

48. I found fault by the care provider with regards to its failure to properly consider Mrs K’s capacity to make decisions about her care. I also found fault by the care provider as it did not inform Mr J that Mrs K had fallen or seek his input about what should happen following the fall.

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Investigator's decision on behalf of the Ombudsman