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West Berkshire Council (17 019 776)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 26 Mar 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complained care commissioned by the Council at The Donnington Nursing Home for Mrs Y was unacceptable and unsafe. The Ombudsman finds fault with aspects of the Home’s record keeping and care provision. The Ombudsman also finds the Council delayed carrying out an annual review. The faults affected Mrs Y’s wellbeing and caused some distress and uncertainty for Mr and Mrs X. The Council has agreed to apologise, pay Mrs Y £1200 and Mr and Mrs X £300 to acknowledge the impact of the faults on them, and take action to ensure the faults do not recur in future.

The complaint

  1. Mr and Mrs X complained that a BUPA-run nursing home, The Donnington Nursing Home (the Home) failed to provide Mr X’s mother, Mrs Y, with an acceptable and safe level of care. They say this affected Mrs Y’s wellbeing and caused them considerable distress and inconvenience.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
  3. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I have investigated the 12 months before Mr and Mrs X complained to the Ombudsman, so the period March 2017 to March 2018.
  5. If we are satisfied with a council’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)
  6. Under our information sharing agreement we will share the final decision with the Care Quality Commission.

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How I considered this complaint

  1. I have considered information from:
    • Mr and Mrs X’s complaint and further documents and telephone conversations with them, including photographs of Mrs Y;
    • the Home’s responses to Mr and Mrs X through its complaints procedure;
    • the Council’s responses to my enquiries, including records from the Home.
  2. I gave Mr and Mrs X, the Council and BUPA the opportunity to comment on a draft of this decision. I have taken account of the comments received before making the final decision.

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What I found

  1. 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.

Fundamental Standards of Care

  1. 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.
  2. The following regulations are relevant in this case:
    • Regulation 9: Person-centred care. CQC’s guidance says providers must “work in partnership with the person, making any reasonable adjustments and provide support to help them understand and make informed decisions about their care, and treatment options, including the extent to which they may wish to manage these options themselves”.
    • Regulation 11: Need for consent. The intention of the regulation is that someone using the service has given consent to any care or treatment provided. CQC’s guidance says “However providers must not provide unsafe or inappropriate care just because someone has consented to care or treatment that would be unsafe.”
    • Regulation 14: Meeting nutritional and hydration needs. CQC’s guidance says “providers must make sure that people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so.
    • Regulation 17: Good governance. CQC’s guidance says “providers must securely maintain accurate, complete and detailed records in respect of each person using the service”.

Background

  1. Mrs Y became a resident of the Home in 2016. She had had a stroke which left her unable to move around on her own or carry out her own personal care.
  2. The records the Home provided show it originally prepared a care plan for Mrs Y in 2016. It has not provided me with a complete plan at this date. The Home’s care plans contain 14 parts covering different aspects of a resident’s care needs. The records provided show there were revisions to the care plan in 2017 and 2018 and monthly reviews of the different parts of the plan. The records provided are not complete and it is not clear whether the Home reviewed all parts of
    Mrs Y’s care plan systematically.

What happened

  1. The Council at first commissioned Mrs Y’s care at the Home and continued to do so when Mrs Y’s family set up a deferred payment scheme. As care commissioner the Council had a duty to review the placement yearly. The Council carried out a six week review in May 2016. The next review was in November 2017.
  2. Mr and Mrs X did not know about the November 2017 review. Another member of the family attended. Mr and Mrs X became aware of the review in December 2017 and then Mr X contributed to it. The Council updated its review document to include Mr X’s contributions.
  3. The final review document recorded Mr X as a joint attorney for Mrs Y’s finances and as an advocate for her. It said, “overall family, resident, myself very happy with care and support being provided.” It also said, “care plans and risk assessments person centred, up to date, reviewed monthly.” The only concerns to be followed up were about Mrs Y’s seating and some maintenance needed to Mrs Y’s bathroom. Mr X attended a seating assessment in December 2017.
  4. Mr and Mrs X visited Mrs Y on Christmas Day 2017. They say she was in her room on her own in her wheelchair. They had provided a torso support and this was not fitted around her chair. Her hair had not been cut or washed for some time. They raised a formal complaint with BUPA about the standard of care Mrs Y was receiving at the Home. They said they often saw her with greasy hair and asked how often the Home bathed her and washed her hair. Mr and Mrs X said they had raised such issues with the Home before and were distressed to be in the same situation again. They copied the complaint to the Council which raised it with Home and left the Home to respond.
  5. BUPA’s response to the complaint accepted some failings at the Home and apologised for them. As a remedy it offered to keep Mrs Y’s fees at the 2018 level until January 2020. Mr and Mrs X considered the remedy was inadequate. They considered the care Mrs Y had received so far had been too poor to justify the price the Home charged.
  6. Mr and Mrs X complained to the Ombudsman about the care Mrs Y received. They said:
    • Mrs Y had not joined in activities based at the Home or outside and spent too much time alone in her room.
    • Mrs Y had not had the right sort of wheelchair to ensure her safety and correct posture.
    • Mrs Y’s torso support was often incorrectly fastened, not fastened at all or not being used.
    • Mrs Y's water jug and call bell were not within her reach.
    • Mrs Y’s food was not cut up as needed.
    • There were poor standards of hygiene resulting in Mrs Y being unwashed, not dressed, having faeces on her hands, having unchanged incontinence pads, having dirty hair and wearing unclean clothes.
  7. The Council became aware of Mr and Mrs X’s continued dissatisfaction with the Home’s response to their complaints in February 2018. As commissioner of the care the Council started its monitoring procedures to ensure Mrs Y was receiving good quality care and not neglected. The Council made an unannounced visit in March 2018 and was concerned about these elements of the Home’s care provision:
    • Mrs Y’s torso support
    • Mrs Y’s personal hygiene
    • Reports Mrs Y was spending long periods in bed
    • General care
    • Poor recording
  8. The Council has been working with the Home since March 2018 to improve its standards and is overseeing an improvement plan. This includes improving activities provision and ensuring residents’ care plans are sufficiently person-centred about when residents want to get up from bed. The Council says it still funds residents at the Home.
  9. Mr and Mrs X say although they had concerns about the standard of Mrs Y’s care Mrs Y did not seem to be concerned. The Council’s review records do not suggest Mrs Y felt unhappy at the Home.
  10. Mrs Y moved to a different care home in August 2018. Mr and Mrs X are happy with the care Mrs Y receives at the new home. They say there is a huge contrast with the standard of care she received before at the Home.

Mrs Y did not join in activities at the Home, inside or outside, and spent too much time alone in her room.

  1. The Home’s records show the Home assessed Mrs Y as being able to decide whether to join in activities. The care plans and monthly reviews provided said staff should encourage her to leave her bed or her room and to attend activities, but respect her wishes if she declined.
  2. The Home kept records of Mrs Y’s activities and interactions with other people. The records provided for the period under investigation are incomplete – they cover March 2017 to 8 August 2017 and January 2018 to March 2018. They miss out four months from August 2017 – January 2018 and there are periods of a few days at a time or sometimes a week when staff recorded nothing.
  3. For the periods they cover, the records I have seen show the Home assessed
    Mrs Y as being sociable and chatty. They show most weeks staff gave Mrs Y lists of the activities available in the communal areas for her to choose from, that she chose to take part in some and she enjoyed them. Sometimes she chose not to take part. There are mentions of friends and family members visiting her and sometimes joining in activities. On one day she went on an outing to a pub. The monthly reviews provided say when Mrs Y went to activities she joined in with everything and talked to everyone around her.

Findings

  1. The records provided show Mrs Y did join in activities and apparently enjoyed them. However the incompleteness of the records means I cannot say how consistently Mrs Y joined in and I cannot determine her participation between August 2017 and January 2018. The records do not make clear what encouragement staff gave Mrs Y if she declined to join in. The lack of records and the Council’s ongoing concerns about residents’ getting up times and activities provision mean there is uncertainty about whether Mrs Y could and should have been more active when she was at the Home. On the balance of probabilities
    Mrs Y’s wellbeing will have been affected by not being as active as she could have been.

Mrs Y did not have the right sort of wheelchair to ensure her safety and correct posture.

  1. The care plans I have seen say Mrs Y needed a wheelchair to move around and needed staff to help her into it and out of it. Staff had to use a full hoist for this and the records show Mrs Y was anxious when using this. The care plans say staff should not leave Mrs Y unattended when in her wheelchair because of the danger of her slipping from it.
  2. During its review of Mrs Y’s placement in November 2017 the Council identified issues with Mrs Y’s seating. It recorded she sat out for short periods only in a standard wheelchair provided by the Home. The Council arranged for its occupational therapist (OT) to carry out a seating assessment in December 2017. Mr X was also involved.
  3. The OT’s assessment report said the Council had issued a specialist wheelchair to Mrs Y in 2016 but it was very large, difficult to use and Mrs Y found it uncomfortable. This contributed to her being reluctant to move about and join in activities. The Home then discovered Mrs Y got on better with a standard wheelchair. The OT considered he needed to work with Mrs Y to make the standard wheelchair as safe and comfortable as possible. The assessment said the Home agreed to arrange for adaptations to the wheelchair to provide Mrs Y with better support. The OT noted Mr and Mrs X had already provided a torso support for Mrs Y to use with the wheelchair which gave her confidence she would not fall forwards. Mr and Mrs X agreed to replace the torso support as it was worn.
  4. At the end of January 2018 in response to Mr and Mrs Y’s complaint BUPA said it could not find any records that the Home had referred the adaptations to anyone for action. The Home then got the appropriate referral form to take the next action. BUPA said the Home Manager would act to review all recommendations made by health care professionals to ensure such delays did not happen again.
  5. Mrs Y started using a new wheelchair in February 2018. When Council officers asked Mrs Y about her new wheelchair in March 2018 she said she did not like it as it was too big and not very comfortable.

Findings

  1. The Council’s annual review should have taken place in May 2017 rather than November 2017. The Council’s six month delay is fault. Had the review been on time then the action the Council took in November 2017 to improve Mrs Y’s seating would have been taken six months earlier.
  2. The Home should also have noticed that seating was an issue and at least asked for advice earlier about it. At the end of 2017 the Home should also have acted on the OT advice straight away. It failed to do so and this is fault.
  3. Mrs Y could not move independently so for her seating to be appropriate was a crucial part of her care. The Council and the Home were at fault in not addressing the issue earlier. The fault is likely to have affected Mrs Y’s wellbeing. It could have contributed to Mrs Y’s reluctance to join in activities.

Mrs Y’s torso support was often incorrectly fastened, not fastened at all or not being used.

  1. The Home’s records are not clear when a torso support was provided.
    Mr and Mrs X say they bought the first one in December 2016 and replaced it in December 2017. The February and March 2018 records say Mrs Y was using a newer chair, with torso support, and felt much safer. In March 2018 Mrs Y’s care plan was clear that her torso support should be used when seated.
  2. The Home has accepted Mrs Y’s torso support was not secure on
    Christmas Day 2017 and apologised for the failure. In January 2018 it also told
    Mr and Mrs X it had directed its staff that Mrs Y’s support should be used, should be securely in place around her Y’s wheelchair and explained how staff should do this.

Findings

  1. The Home’s records suggest that between Mr and Mrs X first providing the torso support and March 2018 staff were not clear that Mrs Y had one, whether she should be using it and how it should be used properly. It is not clear whether any health professional ever said Mrs Y needed one. This lack of clarity is fault by the Home. If the Home had any concerns about whether the support was appropriate it should have sought OT advice.
  2. Given Mrs Y’s reliance on a wheelchair the Home should always have been clear how her wheelchair was to be used, including the use of her torso support. Sometimes Mrs Y was left without proper use of a support which she appeared to value for security. This will have affected her wellbeing.

Mrs Y’s water jug and call bell were not within her reach.

  1. The care plans the Home has provided say Mrs Y was able to communicate her needs verbally and use the call bell. They said staff should have ensured
    Mrs Y’s jug and call bell were within Mrs Y’s reach. Some daily notes were more specific about these needing to be on her left side given her right sided weakness. The daily records I have seen frequently refer to her fluids and call bell being within reach during the day and the night.
  2. Mr and Mrs X say sometimes when they visited the jug and call bell were not within reach. On 25 January 2018 a visiting Council officer recorded that Mrs Y’s call bell was out of reach when Mrs Y needed repositioning.

Findings

  1. The records suggest that on many occasions staff caring for Mrs Y did ensure her jug and call bell were within reach. But the observations of Mr and Mrs X and a Council officer show that this was not consistent enough. The Home was at fault for failing to ensure the jug and bell were always within reach. The failure will have affected Mrs Y’s wellbeing.

Mrs Y’s food was not cut up as needed.

  1. The care plans the Home provided vary between saying Mrs Y needed her food cut up, she needed some food cut up and she would ask for food to be cut up. The monthly reviews I have seen say Mrs Y ate and drank well. Her weight chart showed some ups and downs but a generally upward trend with the Home assessing her at a low risk of any problems resulting from nutrition.
  2. Mr and Mrs X say they saw food given to Mrs Y not cut up as needed.

Findings

  1. The Home was at fault not to be clear in its records on this issue. A failure to be clear may be behind what Mr and Mrs X observed on occasion. However, the overall picture is that Mrs Y ate well and I do not see that she suffered significant injustice as a result of this lack of clarity.

There were poor standards of hygiene which meant Mrs Y was left unwashed, unclothed, with faeces on her hands, with unchanged incontinence pads, with dirty hair and wearing unclean clothes

  1. Mr and Mrs X explain they found Mrs Y in this state once in 2016. They have provided no details of such an episode for the period under investigation. However I have considered the general issue of hygiene.
  2. The care plans provided show the Home assessed Mrs Y as having capacity to make her own decisions over her day to day care. Mrs Y’s original care plan and the reviewed care plan at April 2017 say Mrs Y preferred showers in the mornings. A revised care plan in February 2018 said Mrs Y preferred to have a bath and hair wash once a week. It said staff should offer a bath or wash daily and staff should shampoo her hair whenever she had a bath.
  3. In response to Mr and Mrs Y’s complaint the Home said its records showed hair washes on four days and a refusal by Mrs Y to have a hair wash on a fifth day. The Home said Mrs Y usually had her hair washed and cut by the hairdresser every two weeks. But it accepted an appointment due before Christmas 2017 was missed. The Home said there appeared to be some confusion about whether staff should wash Mrs Y’s hair outside the hairdresser’s visits and that may account for why they did not wash her hair more often. It said the Home had updated Mrs Y’s care plan to say staff should wash her hair twice a week and she should have a weekly bath.
  4. The supplementary personal care chart the Home provided has no record of
    Mrs Y having a shower, bath or hair wash between August 2017 and March 2018. This record contradicts what the Home said about four hair washes. It does support the one instance when Mrs Y refused a hair wash in December 2017. There are some infrequent references in the daily care records to Mrs Y seeing the hairdresser. The chart shows Mrs Y refused a bath or shower on five occasions between August 2017 and March 2018. It shows she had body washes every day a recording was made. The daily care records provided also show
    Mrs Y consented to having a body wash most days.
  5. The supplementary personal care chart shows staff dressed Mrs Y every day the chart was completed. Some references in the daily care records suggest this may have been changing Mrs Y’s nightclothes in bed rather than dressing her for the day but this is not clear.
  6. The daily care records provided show staff checked Mrs Y’s incontinence pad during the day and night and changed it where necessary.

Findings

  1. The Home’s records show a confused approach to Mrs Y’s hygiene. What was on her care plan differed significantly from the records of what care staff provided. Overall the Home’s records do not provide enough information to show staff regularly offered Mrs Y baths, showers and hair washes and when she had them. However the records suggest she had a regular body wash. The confusion and lack of information is fault. On the balance of probabilities I conclude the Home was at fault for not ensuring Mrs Y’s personal hygiene needs were consistently met in accordance with her wishes.

Summary of findings

  1. The Home was at fault for:
    • poor record keeping about Mrs Y’s participation in activities at the Home;
    • delay in addressing the issue of Mrs Y’s seating;
    • lack of clarity about the provision and use of Mrs Y’s torso support;
    • failing to ensure Mrs Y’s jug and call bell were always within reach;
    • lack of clarity about to what extent Mrs Y needed her food cut up; and
    • failing to ensure Mrs Y’s personal hygiene needs were consistently met in accordance with her wishes.
  2. The Council was at fault for delay carrying out an annual review of Mrs Y’s placement leading to a delay in addressing concerns about Mrs Y’s seating.
  3. Because of these faults during the period under investigation Mrs Y was probably less active than she could have been. She was also limited at times in her ability to drink and call for help, and at times had a lower standard of personal hygiene than she may have wished for. Although I have no grounds to consider Mrs Y was distressed during her time at the Home, I have to conclude that her overall wellbeing may have been affected.
  4. The faults caused some distress to Mr and Mrs X and some uncertainty about how well the Home cared for Mrs Y.

Agreed action

  1. 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. I have found fault by both the Council and the Home and the Council has agreed to take the action in the following paragraphs.
  2. Within six weeks of this decision the Council will:
    • apologise to Mrs Y and Mr and Mrs X for the faults by the Home and the Council;
    • pay Mrs Y £1200 to acknowledge the impact of the faults on her wellbeing; and
    • pay Mr and Mrs X £300 to acknowledge the distress caused by the faults.
  3. The Council already has an improvement plan in place for the home. Within three months of this decision the Council will consider whether the faults by the Home identified here should be addressed in the Home’s improvement plan and, if so, what action should be taken.
  4. Within three months of this decision the Council will review its annual review system for residential care it commissions and identify action to avoid delays in future.

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Final decision

  1. I have now completed my investigation. This is because the Council’s agreed actions will remedy the injustice caused by the Home’s and the Council’s faults.

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Investigator's decision on behalf of the Ombudsman

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