Summary: The Council accepted a care agency, acting on its behalf, failed to manage failed to Mr Y’s medication safely and that there were errors in care records, however, it failed to offer a remedy for injustice caused.

The complaint

1. Ms X complains that care agency, acting on behalf of the Council, failed to manage her father, Mr Y’s medication safely, which placed him at risk of harm.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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)

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How I considered this complaint

4. I have:
• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to his complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. 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.
6. Regulation 9 Person Centred Care says Care Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate and meets their needs.
7. Regulation 12 Safe Care & Treatment says people must not be given unsafe care or treatment or be put at risk of harm that could be avoided. Care Providers must assess the risks to a person’s health and safety during any care or treatment and make sure care staff have the qualifications, competence, skills and experience to keep people safe.
8. Regulation 17 Good Governance says Care Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

Background

9. Mr Y is in his eighties. He has cognitive impairment. He lives independently in his own accommodation within a retirement housing facility. He has eligible care needs and receives domiciliary care services commissioned by the Council. The care agency involved in this complaint began providing services to Mr X in August 2023.
10. Ms X lives overseas. Her sister lives close to Mr Y, but during the events complained about she (sister) was also out of the country. Ms X says she and her sister were concerned about the quality of care provided by the care agency, and that carers were not managing Mr Y’s medication properly. Mr Y had a history of taking medication in an ad hoc unsupervised manner. Ms X alerted the care agency about this, but no steps were taken to address this.
11. Ms X says she was contacted by another resident in Mr Y’s housing facility to say Mr Y had been in the resident’s lounge and had taken his medication earlier than he should have done. Ms X says a carer arrived and let herself into Mr X’s accommodation to complete daily care records. Ms X contacted the care agency to say she was flying home immediately and asked carers to hide medication until she arrived. She says carers did not hide medication. She later realised there was medication missing.
12. Ms X was unsure if/what medication Mr Y had taken. She contacted the NHS 111 service, who advised she contact the out-of-hours GP service. Following advice from a GP, who was concerned Mr Y may have overdosed on medication, Mr Y attended A&E where he waited five hours before having blood tests, which confirmed no overdose had been taken. The hospital raised a safeguarding alert to the Council about the management of Mr Y’s medication.
13. Ms X says following Mr Y’s attendance at hospital, there was a further error, when a carer attended and gave Mr Y the wrong medication. Ms X reported this to the care agency, following which she says medication charts from Mr Y’s home were removed. Ms X also noted discrepancies in the care records and believes carers falsified the records.
14. The Council commenced safeguarding enquiries, following which it removed the care agency from its commissioning list and sourced a different care agency to provide Mr Y’s care. Nine points of learning/action for the care agency were identified. The Council is satisfied the care agency has learnt from its errors and taken action to improve its service.
15. In its response to Ms X, the Council acknowledged an occasion the care agency failed to give Mr Y the correct medication. It also accepted carers had wrongly recorded attending Mr Y on two occasions when they had not, but it said it had found no evidence to show care records had been falsified.

Ms X was dissatisfied and submitted a complaint. The Council provided Ms X with what it termed a ‘stage 1’ response, which reiterated its earlier findings. Ms X remains dissatisfied.

Analysis

16. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
17. The information I have seen points to serious shortcomings in the care agency’s actions. Whilst the care agency could not act contrary to Mr Y’s care plan and could not hide Mr Y’s medication as requested, it should have addressed the issue of medication management urgently. At the point it became aware of concerns, it should have made an urgent referral to Mr Y’s GP and/or contacted social services duty team.
18. The Council’s complaint response to Ms X was somewhat contradictory. Whilst it accepted failings in the service from the care agency, it said no evidence had been found to suggest falsification of records, but then went to say carers had signed care records for times they did not attend Mr Y.
19. The Council also failed to acknowledge the distress and inconvenience caused to both Mr Y and Ms X. Mr Y endured a five hour wait in A&E, which must have been both confusing and distressing for someone with cognitive impairment. Ms X was also put to significant time and trouble dealing with the events. She flew back into the UK at short notice, supported Mr Y through the situation, then pursued a complaint with the Council and this office. For this a remedy is required.

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Agreed action

20. The Council should, within four weeks of the final decision:

• apologise to Mr Y and make a payment of £100 in acknowledgment of stress/distress caused by attending A&E;
• apologise to Ms X and make a payment of £250 to acknowledge the time trouble, stress & inconvenience in dealing with the events;
• provide us with evidence it has complied with the above actions.

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Final decision

21. There is evidence of fault in this complaint.
22. The above recommendations are a suitable way to settle the complaint.
23. It is on this basis; the complaint will be closed.
24. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision.

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Investigator's decision on behalf of the Ombudsman