Summary: Mrs B complained about the care provided to her late husband, Mr B, by a care provider commissioned by the Council and the CCG to meet his aftercare needs. We found the care provider failed to properly record Mrs B’s late husband’s needs around eating and food consistency. As a result, Mrs B is left with uncertainty about whether the care provider met his needs in this area. We also found the care provider failed at times to communicate with Mrs B about changes in her husband’s health despite her being his attorney for health and welfare. This is likely to have caused her avoidable distress. However, the care provider acted to improve when it dealt with Mrs B’s complaint. The Council and the CCG have agreed to our recommendations and will apologise to Mrs B and pay her £250 each.

The complaint

1. The complainant, who I shall refer to as Mrs B, complains a care provider commissioned by East Sussex County Council (the Council) and East Sussex Clinical Commissioning Group (the CCG) failed to provide her late husband, Mr B, with good quality care and support from March to May 2020. The placement was funded under the terms of section 117 of the Mental Health Act (MHA) 1983.
   Mrs B specifically complains the care provider failed to:
• ensure Mr B’s food was chopped up into small pieces to minimise a risk of choking;
• have due regard to her role as her husband’s attorney for health and welfare; and
• take prompt action when Mr B contracted the COVID-19 virus and his condition deteriorated.
2. As an outcome to her complaint Mrs B seeks an apology from the Council and the CCG and a financial remedy.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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)).
5. 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.
6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their 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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How I considered this complaint

7. I have considered information provided by Mrs B and by the authorities complained about. All parties now have an opportunity to respond to a draft of this decision.

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What I found

Legal and administrative context

8. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act 1983 (MHA) imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
9. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
10. The Care Quality Commission (CQC) monitors, inspects and regulates registered health and social care services to make sure they meet fundamental standards of quality and safety. The fundamental standards are the standards below which care must never fall.
11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 12 - The intention of this regulation is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment and make sure that staff have the qualifications, competence, skills and experience to keep people safe.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

13. At the time of the events complained about the relevant guidance for caring for people during the COVID-19 pandemic was ‘Admission and care of residents in a care home during COVID-19’ first published in April 2020.

Background

14. The late Mr B previously lived with his wife Mrs B in the family home. Mr B developed a brain tumour and following initial treatment he continued to live with his wife. Unfortunately, his condition worsened, and he moved to several specialist brain injury facilities before moving to the placement commissioned by the Council and the CCG (Placement J) in August 2018. Before this Mr B lived in a placement managed by the same care provider as Placement J.
15. The Council and the CCG had statutory responsibility for Placement J under the terms of section 117 of the MHA due to Mr B’s mental health diagnosis and previous detainment under the MHA.
16. Placement J is a specialist neurorehabilitation service that provides post-acute neurobehavioral rehabilitation for people with an acquired brain injury as well as offering long term care and support to people with complex needs relating to progressive neurological conditions.
17. Placement J completed a Care Programme Approach (CPA) review meeting in February 2020. The review document noted Mr B had little awareness of his mental health challenges. The CPA review document had update notes in the sections with headings marked Nursing Staff, OT Report and Physiotherapist. The section marked SALT is incomplete.
18. The CPA review document also noted Mrs B was very active in her husband’s care on the unit. The document stated she telephoned him in the evenings which Mr B enjoyed, and this lifted his mood. Mrs B also visited her husband regularly and this had a positive effect on him. Mrs B was her husband’s attorney for health and welfare.

Deterioration in Mr B’s health

19. At the beginning of May 2020 Placement J said its nurse in charge noted Mr B appeared tired and he was experiencing physical pain. The nurse completed pulse and blood pressure checks and these were within normal range. However, Mr B complained about having a headache.
20. On the morning of 2 May the nurse noted Mr B still appeared lethargic and not his usual self. The nurse decided to contact the non-emergency NHS services telephone number (NHS 111) for advice. A doctor from NHS 111 called the nurse an hour later and advised Mr B should be monitored closely and his temperature and urine be checked at intervals. The doctor did not recommend hospital admission.
21. Later in the evening on the same day the nurse checked Mr B’s vital signs and noticed that his condition had deteriorated. The nurse called NHS 111 to report Mr B’s high temperature and the NHS service told the nurse an ambulance was on its way. Once the ambulance crew arrived Mr B was transported to hospital. Placement J said its staff kept Mrs B updated. Mrs B did not agree with this statement and said she kept Placement J informed.
22. Once at hospital Mr B was transferred to a ward specialising in treating patients with confirmed or possible COVID-19 virus. Placement J said at the time lockdown restrictions were in force and its staff followed Public Health England and the organisational policies on the management of the COVID-19 pandemic.
23. Mr B remained in hospital and unfortunately passed away in May 2020.

Mrs B’s complaint to Placement J

24. Mrs B complained to Placement J later in May 2020. She raised several issues including the lack of communal activities in the placement. She also referred to staff at the Placement J not chopping up Mr B’s food to prevent a choking hazard and that nothing had been done about this when she raised concerns. Mrs B said she was told by the hospital Mr B had pneumonia, sepsis a distended abdomen and coronavirus. She felt this was because of neglect by Placement J.
25. Placement J responded to Mrs B’s complaint in July 2020 following an investigation by a senior nurse. Placement J found that:
• Mr B’s long-term disabling illness had not significantly declined during his time in the placement prior to his admission to hospital in May 2020. It also referred to compliments Mrs B had written during her husband’s time in the placement.
• Mrs B was correct when she said Mr B needed his food chopped up small and moist. Entries in his health records show there had been periods of ill health caused by food not being cut up.
• Staff were aware of concerns relating to Mr B’s diet and it had appropriate action plans in place to reduce the risk of him choking during mealtimes.
• Staff acted quickly when Mr B became unwell and liaised with the emergency services appropriately. When Mr B was unwell Placement J and other providers could not carry out testing in community placements as this was not available.
26. Mrs B raised further complaints to Placement J after it had sent her its response. It wrote to her again in August 2020. Placement J said, it accepted Mr B’s food was not always chopped as witnessed by Mrs B on occasion when she had visited. It apologised and said it would ensure staff at Placement J are involved in training relating to dietary needs and prevention of choking.
27. Placement J also responded to Mrs B’s concern that staff were not always wearing masks when she had visited. Placement J said since the start of the pandemic it had circulated information about the requirements for its staff to wear personal protective equipment (PPE) and it had worked in accordance with Public Health England guidelines. Mrs B said
28. After receiving her husband’s health records Mrs B raised further complaints to Placement J in April 2021. Mrs B said she had gone through all the medical notes and in her letter, she referenced specific entries from 31 March 2020 to
    2 May 2020. Mrs B referred to specific entries relating to her husband’s dietary needs and Placement J’s actions.
29. Placement J responded in July 2021. The care provider said, it had referred to
    Mr B’s care records covering the period complained about. Placement J found that:
• it had not clearly identified in Mr B’s care records which classification of food consistencies he was prescribed.
• a Speech and Language Therapist (SaLT) had said Mr B did not have swallow problem, but it had not clearly documented interventions from a SaLT in Mr B’s care records.
• entries in the care records showed Mr B had vomited when eating before his admission to hospital and staff had reacted suitably. It concluded it did not properly communicate decisions about food consistency to Mrs B.
• its day-today communication with Mrs B about her husband’s care could have been better especially as she could not visit the placement because of the national lockdown in response to the Covid-19 virus outbreak.
• its staff had acted quickly to seek guidance from NHS 111 when Mr B’s health deteriorated, and it had followed national guidance when responding.
• Placement J was under new management and had made several improvements around record keeping ensuring patients had a personalised feeding care plan. All staff had received training in managing the risk of choking and how to complete a swallowing risk assessment. It had also put systems in place to ensure relatives were notified of changes in care.
30. Mrs B said she felt Placement J knew her husband had difficulty swallowing and although the types of food he needed was written down they did not meet his needs. Mrs B received the final response Mrs B asked the Ombudsmen to consider a complaint

Findings

31. Although Placement J responded to Mrs B’s complaints as the clinical care and social care support providers the Council and the CCG commissioned the placement under the terms of section 117 of the MHA. Therefore, the Council and the CCG remained responsible for Mr B’s placement and the actions of Placement J.
32. The investigation completed by Placement J showed that Mr B was involved with a SaLT. The CPA documentation completed in February 2020 did not record any comments or interventions by a SaLT. This is fault. The CPA provided an opportunity to record Mr B’s wholistic health and social care needs. This would have also provided an opportunity to record any interventions or specific care relating to his dietary needs. The officers involved could have also assessed any risks relating to swallowing and choking.
33. Mrs B was aware of her husband’s dietary needs including how he needed his food to be chopped up and moist. Placement J initially said its staff were aware of Mr B’s diet and that it had appropriate action plans in place to reduce the risk of him choking at mealtimes. It later found it had not clearly identified which classification of food consistencies Mr B needed to have. It did not confirm whether it had completed a swallowing risk assessment. This is fault.
34. A risk assessment should have been completed and reviewed regularly by a suitable person. It should have included a plan for managing the risk to Mr B. Placement J could have also involved Mrs B as she played an active role in her husband’s care and support. She was also his attorney for health and welfare.
35. Mrs B’s review of care records led to her view her husband was given foods in a way which could have presented a choking hazard. It is more likely than not that this was the case given that the care records did not give staff clear information about food consistency. The fault identified is likely to mean Mrs B experienced doubt about whether staff provided safe care and treatment to her husband regarding his eating needs. It is also likely to caused her to experience avoidable distress.
36. The evidence available does not suggest the fault identified caused or contributed to Mr B’s deterioration in health or his death. This should provide some reassurance to Mrs B.
37. Following its investigation Placement J made several improvements which included ensuring patients had a personalised feeding plan and training for its staff. It is therefore not necessary to make another recommendation for service improvement in this area.
38. Placement J also found it did not communicate with Mrs B as well as it should have. This is fault. As Mr B’s attorney for health and welfare the care provider should have had due regard to Mrs B’s status and ensured she was included in discussions about her husband’s care. For example, when Placement J contacted external health professionals it did not let Mrs B know or keep her updated. It is likely Mrs B experienced avoidable distress and frustration when she reviewed her husband’s care records and learnt she was not contacted at times when staff had recorded changes in her husband’s health.
39. When Mr B became unwell in May 2020 the clinical team in Placement J monitored his vital signs including his temperature. Mrs B queried why her husband had not been tested sooner. At the time of the events complained about community testing for the COVID-19 virus was not available.
40. The evidence available indicates Placement J was in touch with NHS services and followed the advice given. The advice did not state Mr B should be transferred to hospital. Placement J continued to take temperature readings although this was not a requirement of the guidance at the time. Once there was a change in Mr B’s temperature and it was not within the normal range the care provider contacted NHS 111 and a decision was made to arrange transportation for Mr B to go to hospital. The action taken by Placement J was in line with the relevant guidance.
41. Once Mr B was in hospital and on an acute ward, he tested positive for the COVID-19 virus. The evidence available does not lead to a view Placement J acted outside of the guidance at the time. It could not test Mr B in the placement, but it sought medical assistance while monitoring his health ensuring he was admitted to hospital when necessary. Therefore, I do not find evidence of fault in relation to this part of the complaint.

Conclusion

42. The care provider commissioned by the Council and the CCG failed to properly consider and record Mrs B’s late husband’s needs around eating and food consistency. As a result, Mrs B is left with doubt about whether the care provider met his needs in this area. The care provider also failed to communicate with Mrs B on occasion about changes in her husband’s health despite being his attorney for health and welfare. This is likely to have caused her avoidable distress.
43. There is no evidence of fault in the way the care provider responded when Mr B became unwell and later had to be admitted to hospital. The care provider accepted Mrs B was very close to her husband and misses him dearly. It apologised to her when it dealt with her complaint. It also confirmed the changes it made to improve. However, since making her complaint to us the care provider has now closed. The Council and the CCG did not deal with the complaint so have not yet communicated directly with Mrs B or apologised.

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Recommendations

44. Within one month of our final decision, the Council and the CCG will:
• jointly write to Mrs B to apologise for the impact the faults had on her. They will also pay her £250 each in recognition of the impact the faults had on her.

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Final decision

45. I uphold Mrs B’s complaint about the way the provider commissioned by the Council and the CCG met her husband’s dietary needs and the way it communicated with her. There is fault causing injustice. The Council and the CCG have agreed to our recommendations, so I have closed the complaint.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman