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Newcastle upon Tyne City Council (17 020 170)

Category : Adult care services > Residential care

Decision : Not upheld

Decision date : 23 Nov 2018

The Ombudsman's final decision:

Summary: There is no evidence that the care provider (acting on behalf of the Council) failed to seek necessary medical attention for the late Miss A. The Council’s safeguarding enquiry prompted a change in one of the care provider’s practices but that does not reflect on Miss A’s death.

The complaint

  1. Ms X (as I shall call the complainant) complains that the care provider commissioned by the Council failed to seek medical attention for her aunt, the late Miss A, failed to encourage her to take her medication and failed to provide her preferred drinks to encourage her fluid intake.

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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. 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)
  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)

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How I considered this complaint

  1. I considered the written information provided by Ms X, the care provider and the Council. Both Ms X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

Relevant background information

  1. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
  2. 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.
  3. The CQC’s guidance says that care providers must take appropriate action if there is a clinical or medical emergency.
  4. The guidance also says that care providers should meet people’s nutrition and hydration needs. It says when a person lacks capacity, they must have prompts, help and encouragement to eat as appropriate.
  5. The guidance also says that medicines must be administered accurately and in accordance with the prescriber instructions.

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What I found

  1. Miss A had lived in her own home with some assistance from carers every day until she fell and broke a leg in November 2017.
  2. The Council arranged for Miss A to be cared for in a nursing placement at the care home (Belle Vue Lodge), and she was discharged from hospital to the care home at 6pm on 20 December. Ms X, her niece, says Miss A would have preferred to go home but knew she would be unable to cope while her leg was in plaster.
  3. The care provider says Miss A was transferred straight to her room on arrival as she was in her nightclothes. The care provider says general observations had been taken when she was discharged from hospital and it did not repeat those. The records for her admission noted, “requires assistance and encouragement with prescribed medication. Normal food and fluids…. requires a lot of prompting and assistance with food and fluid intake”.
  4. Ms X says when she visited Miss A on 21 December she was shocked to find that Miss A was still in bed at 11am. She raised her concern with the care staff who said they had let Miss A have a “lie-in”. She said she told them it was important that Miss A took her medication at the proper time. The daily care record for 21 December noted that Miss A needed “a lot of prompting” to take her medication; that her fluid intake was poor and concludes: “push fluids”. Miss A says she asked the care staff to offer Miss A her medication in a different way but they said they could not.
  5. The care records for the next three days continued to say that Miss A was either non-compliant with medication or took a lot of persuasion, and her diet was described as poor.
  6. Ms X says she was concerned about Miss A’s appearance and mood. She told the home’s manager she would call out Miss A’s own GP but he said he would not attend as it was out of his area and Miss A would have to register with the home’s GP instead.
  7. On 25 December Miss A was in the care home lounge when it was noticed that she was not responsive. The care home staff called paramedics and started CPR but Miss A passed away. The cause of death was pneumonia: she also had a urinary tract infection.

The complaint, the response and the safeguarding investigation

  1. Ms X complained to the care provider in January about the quality of care. She complained that Miss A had been left in bed on 21 December. She asked why the care home had not called a GP when she had said she was concerned about Miss A. She complained that the staff had not given her medication properly. She also complained that although she had taken in cartons of apple juice for Miss A to drink (as she did not like orange juice) the staff had not offered them to her although she was obviously thirsty.
  2. The care provider responded to the complaint. The operations manager said when the carer had gone into Miss A’s room on 21 December she was still asleep so in line with company policy on promoting choice, he had left her to sleep. She said the records showed Miss A had not always wanted to take her medication but she explained the care home could not simply change the method of administration, it had to be a joint agreement with the pharmacy and GP. She added that Miss A had taken her medication after that episode. She said the fluid charts detailed the fluids which Miss A had taken. She said the manager had been correct to say Miss A would have to register with the home’s GP for visits.
  3. Ms X remained dissatisfied and wrote again to the care provider, who she said had not answered her complaints. She said the home should have registered Miss A with a GP and made sure the nurses monitored her.
  4. Ms X met with the care provider’s head of operations who wrote to Ms X after their meeting. She said she had interviewed the home manager who remembered discussing GP availability with Ms X but did not recall being asked to call a GP. She said if Miss A had needed a GP then the home would have called the out-of-hours GP immediately. She said “at no time did the manager or any of the nursing staff caring for (Miss A) feel the need to call for a GP”.
  5. Ms X also raised her concerns with the Council’s safeguarding unit. The Council carried out an investigation in line with its procedures. It heard that although Ms X had been concerned about Miss A, nursing staff had not been concerned about her presentation and saw no need to call a GP, although an out of hours GP could have been called if necessary. It checked all the care plans and intake records and was satisfied they were appropriate. It recorded that Miss A had deteriorated suddenly on the afternoon of 25 December. The outcome of the safeguarding investigation was that there was no substantiated safeguarding concern but in future the care provider would take baseline observations of all new admissions.
  6. Ms X complained to the Ombudsman about the care provider’s failure to call a GP when she had expressed concern.
  7. The care provider told us Miss A had access to a GP at all times as they could have called the out of hours doctor if necessary. The care provider said the qualified nursing staff in the home were expected to take clinical decisions based on their professional experience. Both nursing staff who attended Miss A said she did not require a GP. They would have sought a GP visit if Miss A had continued to refuse medication, or if she had presented as unwell.
  8. Details of the medicine administration charts and the food and fluid intake charts have been provided to us.


  1. There is no evidence the care provider failed to meet Miss A’s nutrition and hydration needs, or to prompt her where appropriate, although Ms X’s concern is understandable if the drinks she took for Miss A went unused.
  2. There is no evidence the care provider failed to follow its procedures in terms of compliance with medication.
  3. There is nothing in the daily records to show that Miss A showed signs of being unwell or give sufficient concern that the nursing staff were prompted to call a GP. The care provider has explained that an out of hours doctor could have been called at any time.
  4. The Council undertook appropriate safeguarding enquiries and did not substantiate the allegations of neglect of poor care.

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Final decision

  1. There is no evidence of fault by the care provider acting on the Council’s behalf.

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Investigator's decision on behalf of the Ombudsman

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