Summary: Mrs X complains about the quality of care provided to her husband, Mr Y. She complains the Care Provider has failed to properly implement conditions attached to Deprivation of Liberty Safeguards for Mr Y since October 2016, which related to activities to occupy Mr Y’s time and to manage his interaction with another resident. Mrs X says she had to move Mr Y to another care home in April 2018, when his health and well-being deteriorated further as a result of poor care. Mrs X is unhappy with the Care Provider’s refusal to refund all the upfront fees she paid on Mr Y’s admission. The Care Provider has already offered Mrs X a payment to remedy the faults it identified with her husband’s care and the service to her. The Care Provider has accepted the Ombudsman’s finding of an additional fault and agreed to provide further remedy.

The complaint

1. Mrs X complains about the Care Provider’s failure to properly implement the conditions in her husband, Mr Y’s Deprivation of Liberty Safeguards (DoLS) review from October 2016 to April 2018. Mrs X says the Care Provider did not adequately monitor or manage her husband’s friendship with another resident and did not notify her when incidents took place involving her husband. She says Mr Y suffered unnecessary distress and confusion when the Care Provider did not properly manage his move to another room in the care home. Mrs X says she; her family and Mr Y’s other attorneys have suffered injustice as they were not kept informed or involved in changes made to Mr Y’s care. Mrs X felt she had no choice but to remove her husband and place him in another care home when the issues, including a lack of proper personal care and medication being left in Mr Y’s room, started to cause a significant decline in Mr Y’s health and well-being. Mrs X also complains about the Care Provider’s refusal to reimburse all the administration and refundable deposit fees she paid on admission.

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The Ombudsman’s role and powers

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 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
3. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)
4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
5. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I have spoken with Mrs X about her complaint and considered the information she provided. I have considered the information the Care Provider has provided in response to my enquiries.
8. I have written to Mrs X and the Care Provider with my draft decision and considered their comments.

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What I found

9. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
10. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the MCA 2005. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the local authority and may include conditions for the managing authority to meet.

Safeguarding

11. If a council thinks someone might be at risk of neglect or abuse, and cannot protect themselves from those risks, it must make (or arrange for someone else to make) any necessary enquiries. The council must also decide whether anyone should take any action to protect the person at risk. This is set out in section 42 of Care Act 2014. The Care and Support Statutory Guidance guides professionals on how to fulfil this duty.
12. A fundamental part of the safeguarding process is that it should be about promoting the person’s wellbeing and decisions should reflect the person’s wishes wherever possible (Sections 14.8 and 14.79, Care and Support Statutory Guidance).
13. In line with this, when following safeguarding duties all professionals must work in line with the MCA (Sections 14.55 to 14.61, Care and Support Statutory Guidance).
14. It is also very important that they take the wishes of the adult into account (Section 14.96, Care and Support Statutory Guidance).
15. Also, that ‘where the adult may lack capacity to make decisions about arrangements for enquiries or managing any abusive situation, then their capacity must always be assessed and any decision made in their best interests’ (Section 14.108, Care and Support Statutory Guidance).

Care Quality Commission Guidance for providers

16. Section 23(1) of the Health and Social Care Act 2008 requires the Care Quality Commission (CQC) to produce guidance for providers of health and adult social care, to help them comply with the regulations within the Act.
17. The CQC Guidance about compliance ‘Summary of regulations, outcomes and judgement framework’ March 2010 Outcome 3: Fees states:

“People who use services, or others acting on their behalf, who pay the provider for the services they receive:

• Know how much they are expected to pay, when and how.
• Know what the service will provide for the fee paid.
• Understand their obligations and responsibilities.

This is because providers who comply with the regulations will:

• Be transparent in the information they provide about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.”

What happened

18. Mrs X is attorney and Resident Personal Representative for her husband Mr Y, who has a diagnosis of vascular dementia. Mr Y first became a resident of the Care Home (the Home) in October 2015. Despite a deterioration in Mr Y’s memory, he remains active and keen to participate in activities to occupy his time and improve his mental well-being. Mr Y and his family pay for his care in full and Mrs X manages this with help of Mr Y’s two other attorneys.

DoLS review and conditions

19. In September 2016, the Council undertook a Deprivation of Liberty Safeguards (DoLS) review for Mr Y. The review concluded that Mr Y should continue to be deprived of his liberty to receive care and this did not adversely impact on his mental health or wellbeing. The Council also suggested Mr Y might benefit from more to occupy his time over the weekends when the Care Provider had noted he became bored and restless. The Council recommended the Care Provider maximised opportunities for Mr Y to have person-centred trips and one-to-one time to help occupy his time in a meaningful way. The DoLS review included the following two conditions the Care Provider should meet in order to obtain standard authorisation:

• To arrange a meeting with Mrs X to write an activities care plan for Mr Y that stated how many times he would be supported to go out each week and what activities and stimulation he would be given each week as part of his care plan; and,
• For the Care Provider to record the action it intended to take when Mr Y and the other resident he had formed a close friendship with went into each other’s rooms and were on their own. The Care Provider should undertake capacity assessments for Mr Y and the other resident with input from their families to help make decisions in their best interests.

The Council issued its decision at the beginning of December 2016 and gave the Care Provider four weeks to complete the above conditions.

DoLS condition - activities

20. In March 2017, the Care Provider noted in Mr Y’s communication care plan that he had been given a structured activity sheet which gave details of the activities available and the chores he could help with around the home. The plan also noted that a carer should spend one-to-one time with Mr Y for 20 minutes once in the weekend to have a chat, walk or complete a small activity together. The Care Provider also recorded Mr Y was given the job of setting the tables for lunch and dinner during the week and asked to help with the library trolley. The Care Provider’s records do not include evidence that it met with Mrs X to discuss the activities plan for Mr Y as recommended in the first DoLS review condition.
21. In October 2017, the Council carried out an annual review of Mr Y’s DoLS assessment and the Care Provider’s action to implement the conditions recommended in 2016. The Council noted that the condition relating to activities had been partially met as a fulltime activities’ coordinator had been recruited and Mrs X had noted some improvement in the range of activities Mr Y was offered. The Council decided the condition should remain in place and the Care Provider should arrange to meet with Mrs X to write up and finalise a plan of activities to provide mental stimulation to Mr Y.
22. Following the Council’s annual review, the Care Provider drafted a plan of activities for Mr Y which it shared with Mrs X in December 2017. Mrs X asked for the plan to be amended to include daily walks around the Care Home grounds, but the Care Provider told her it did not have the staffing resource to provide this. The Care Provider did not meet with Mrs X to discuss the plan or to agree and finalise its content.
23. The Council carried out a further DoLS review earlier than planned at the end of March 2018 in response to the Care Provider’s safeguarding referral following an incident involving Mr Y and the other resident. The Council noted that while there was some evidence of activities occurring to help occupy Mr Y’s time, there was still no specific activities plan in place. The Council’s DoLS assessor noted that during their three-hour visit, they observed Mr Y walking up and down the corridor and waiting near the door to try to leave when the assessor did. The Council recommended the Care Provider arranged within one week to meet with Mrs X to write an activities plan that set out the number of times Mr Y would be supported to go out each week and what activities and stimulation he would be given each week as part of his care plan. In addition, the Council recommended the Care Provider immediately started to separately record when Mr Y asked to leave the Care Home or made attempts to leave.

DoLS condition - management of interaction with another resident

24. In January 2017, the Care Provider undertook an assessment of Mr Y’s mental capacity in relation to the time he spent alone with the other resident in each other’s rooms. The Assessor consulted Mrs X, carers and nurses at the Care Home and noted Mr Y lacked capacity to make decisions about the appropriate level of contact he should have with the other resident. The Assessor stated the Care Home should start discrete monitoring of the time Mr Y and the other resident spent together in each other’s rooms to help establish the nature of the relationship. Carers were asked to escalate any concerns to the nurse in charge to reassess the situation if needed. The assessment did not include instructions on how carers should record their observations during discrete monitoring. The daily care notes made following the capacity assessment do not appear to include details of what carers observed during interaction between Mr Y and the other resident, other than noting they were together.
25. The Council’s annual review in October 2017 noted concerns that the Care Home had not completed the actions to meet the 2016 condition relating to Mr Y’s interaction with the other resident to a good enough standard. The Council noted the lack of specific guidance for carers and that the Care Home did not appear to have appreciated the relationship between Mr Y and the other resident could be anything more than platonic.
26. The Council modified the DoLS condition about Mr Y’s interaction with the other resident. The Council recommended the Care Home implemented 30-minute observations when Mr Y was with the other resident to establish if the relationship was more than platonic. The Council recommended the Care Home undertook further mental capacity and risk assessments of Mr Y and the other resident to ensure both individuals were appropriately safeguarded if it was found they lacked the capacity to consent to aspects of their interaction. The Council discussed this with the Care Home Manager at the time of the assessment, who agreed to immediately implement 30-minute observations.
27. The Care Provider made a safeguarding referral to the Council in March 2018, following a series of instances at the end of February where Mr Y and the other resident were found in each other’s rooms in varying states of undress. The Care Provider was concerned that neither resident could confirm consent to the level of physical contact between them. The Council confirmed the incidents did not meet the threshold for safeguarding but recommended the Care Provider undertook further mental capacity and best interests’ assessments of Mr Y and the other resident to establish the appropriate levels of contact between them while in private. The Care Provider assessed Mr Y and established he did not have the mental capacity to decide how much contact he should have with the other resident. The Care Provider decided it would support Mr Y to help maintain his friendship with the other resident by developing meaningful activities they could do together as a distraction from spending time alone in each other’s rooms. The Care Provider also placed restrictions on the times when Mr Y and the other resident could spend alone in each other’s rooms.

Room change

28. The Care Provider made the decision to move Mr Y to a different unit in the Care Home away from the other resident in early March 2018. This was because there were further incidents of Mr Y and the other resident being found undressed in each other’s rooms following the Care Provider’s safeguarding referral. The Care Provider called Mrs X to inform her Mr Y would be moving to another room and explained this was in his best interests and the only way it could continue to provide care to Mr Y.
29. Mr Y was moved to a room in another unit of the Care Home on 9 March 2018. Mrs X was away on business on that day as was not able to support Mr Y’s transfer. Mrs X expressed concerns about her husband’s move as she felt it would cause more issues than it would resolve. Mrs X informed the Care Provider that she was going to look for an alternative care home for Mr Y as she was unhappy with the Care Provider’s decision to move Mr Y.
30. Mr Y’s daily care records from 9 March 2018 showed that he appeared confused and agitated following his move. Carers noted Mr Y was disorientated and attempted to leave the unit or access other residents’ rooms because he was confused. Records included details of incidents where Mr Y pushed a carer while attempting to leave the unit, disturbed another resident while they were trying to eat their meal and struck another carer while they tried to assist with personal care. Carers also recorded Mr Y appeared more settled on the days when he participated in activities organised by the Care Home. Mrs X moved Mr Y to another care home on 18 April 2018.

Personal care and left medication

31. Mrs X asked carers to provide Mr Y with more support with his personal care as he was forgetting to shower and change his clothes. The Care Provider undertook annual reviews of the level of support Mr Y needed with personal care. The review in 2017 noted Mr Y would receive support from one carer with his personal care as he needed reminding to shower, change his clothes and brush his teeth. The 2018 review noted a decline in Mr Y’s mental health which led to him not always cooperating with carers who were trying to help with personal care. The review noted that carers would continue to support Mr Y with maintaining personal hygiene provided he accepted their help.
32. Mr Y’s dental therapist emailed the Care Home Manager in February 2018 to request carers followed a regime of dental hygiene to help avoid further issues caused by Mr Y’s gum disease. There is no evidence within the records the Care Provider has sent to the Ombudsman to show this guidance was recorded for carers to follow when supporting Mr Y with his personal care. Mr Y’s dentist has recently reported an improvement in Mr Y’s dental health which they believed was due to the better level of care he received at the new care home.
33. In October 2017, Mrs X reported to the Care Home that Mr Y’s son had found four sachets (three full and one half empty) of inflammatory bowel disease medication in Mr Y’s room which he had not taken. A Manager from the Care Home apologised for this and undertook observations of the nurses’ rounds to ensure medication was being given correctly. The Manager did not observe any issues but reported to Mrs X that some agency nurses had been working at the Care Home and they may not have followed the correct procedures.

Upfront fees

34. Mrs X signed the contract for Mr Y’s admission to the Care Home as his attorney. Admission at the time carried a non-refundable administration fee of £2,500 and a refundable deposit of £2,500, which Mrs X paid.
35. The Care Provider’s terms and conditions state the upfront administration fee were used to cover the costs of care planning and setting up the financial records for the resident. The purpose of the refundable deposit was not clear from the terms and conditions.
36. When Mrs X told the Care Provider she intended to find another care home for Mr Y, she asked about the upfront fees she had paid for him on admission. Mrs X said she expected the Care Provider to refund those fees as she had been clear about her intention to move Mr Y some weeks before her left on 18 April 2018.
37. The Care Provider refunded £1,915.71 of the refundable deposit to Mrs X two months after she moved Mr Y to another care home. Mrs X has questioned why she has not been refunded the full amount of the deposit she paid and there appears no evidence to show the Care Provider has responded to Mrs X’s question.

The Care Provider’s response to Mrs X’s complaints

38. There was a six-month delay in the Care Provider responding to Mrs X’s complaints from April to October 2018. The Care Provider contacted Mrs X on two occasions during this time to update her on the progress of her complaints in June and August 2018. Mrs X had to contact the Care Provider on more than one occasion to receive updates on progress and to request the refund of the deposit and copies of Mr Y’s records.
39. The Care Provider’s response to Mrs X’s complaints at the end of October 2018 accepts there were some aspects of Mr Y’s care that were not handled as well as they could have been. The Care Provider also agreed that communication with Mrs X about Mr Y’s care could have been better. The Care Provider confirmed that left medication in Mr Y’s room was against company policy and disciplinary action had been taken to address this. The Care Provider apologised for the delay in responding to Mrs X’s complaint, her request for Mr Y’s care records and refund of the deposit. The complaint response does not include an explanation for why the full deposit was not refunded to Mrs X.
40. The Care Provider offered Mrs X £5,000 in recognition of the shortcomings highlighted by her complaint. The Care Provider has confirmed to the Ombudsman that this offer still stands if Mrs X wishes to accept it.

Analysis

41. I have examined Mr Y’s daily care records from 27 September 2016 to 18 April 2018 - a total of 568 days. The records show Mr Y did not participate in activities for 123 out of the 568 days. For most months, Mr Y participated in activities at least two or three times a week. The activities recorded do not match those listed in his activities plan. Records for Mr Y during January and February 2017, when Mr Y did not participate in any activity for 17 and 19 days respectively, also showed him appearing restless and struggling to remain asleep. The Care Provider was at fault during this period for not fully complying with the recommendation in the DoLS assessment in October 2016.
42. The Care Provider is at fault for not meeting with Mrs X to agree a suitable activity plan for Mr Y as set out in the DoLS condition and for its delay in drafting a plan which the Care Home did not entirely follow. That said, the daily care records showed Mr Y did participate in activities which he appeared to enjoy. The Care Provider’s response to Mrs X’s complaint acknowledges that it did not communicate effectively with Mrs X about her husband’s activity plan.
43. The recording of interaction between Mr Y and the other resident was poor. It lacked the level of detail needed to assess the feelings of both residents, which was needed to determine if they were appropriately safeguarded. There were instances within the care records which show carers distracting Mr Y and the other resident by encouraging them to join activities in communal areas of the Care Home, which showed good practice and followed the guidance provided by the Council’s DoLS assessor. It is also clear from the care records that Mr Y appeared more settled when he spent time with the other resident. The Care Provider’s actions in Mr Y’s case were not compliant with its own policy on sexuality and sexual relationships, which states that residents should be supported to have relationships where this can be done safely and is in the best interests’ of the resident if they are unable to consent to the interaction. This was fault and the Care Provider upheld this aspect of Mrs X’s complaint and agreed that its records did not give sufficient information to help manage the relationship between Mr Y and the other resident.
44. The Care Provider’s failure to undertake an assessment to establish the action required in the best interests of Mr Y and the other resident when the incidents of concern between them increased was fault. Mr Y was clearly confused and upset by the move to another part of the Care Home on 9 March 2018. The Care Provider failed to evidence why the move was so urgent that it could not wait for Mrs X’s return to help support Mr Y. This episode was distressing and upsetting for Mr Y, Mrs X and the rest of his family. Mrs X says the other resident was extremely distressed when Mr Y was moved. The other resident’s family told Mrs X that the other resident was distraught because they thought Mr Y had died. This no doubt added to Mrs X’s distress.
45. The Care Provider’s complaint response explained the decision to move to Mr Y in March 2018 was made in the best interests of all residents. The Care Provider has not provided evidence to show it undertook assessments of Mr Y or the other resident to check the move was in their best interests, which was fault. Mrs X denies she agreed with the rationale behind the move as stated in the Care Provider’s complaint response. On balance, I am inclined to accept Mrs X’s version of events as this was the point when she started to look for an alternative care home for Mr Y. If Mrs X had agreed to the move, I doubt she would have taken this action immediately afterwards. In addition, the Care Provider has not provided evidence such as a note of the call with Mrs X which records the details of the conversation or Mrs X’s views.
46. The Care Provider’s complaint response explains care plans for Mr Y were reviewed and revised as his needs increased with personal care. The Care Provider accepted that daily care records did not show carers had made repeated attempts to encourage personal care but said it was assured by the Care Home that staff did offer to support Mr Y with personal care more than once a day. This was fault.
47. The Care Provider has apologised to Mrs X that medication was left in Mr Y’s room. The Care Provider said the issue had been investigated through its disciplinary procedures. The medication left in Mr Y’s room amounted to just over one full day’s dosage according Mr Y’s care plan, which stated he should take this medication three times a day. The Care Quality Commission (CQC) has a set of fundamental standards below which the standard of care provided must never fall. It states a person must not be given unsafe care or treatment or be put at risk of harm that could be avoided. By failing to ensure medication is given in accordance with the prescribing instructions, a care home could be putting the resident at risk of harm. While this was fault, there is nothing to indicate Mr Y suffered any direct harm as a result of the missed medication.
48. The Care Provider’s responses to Mrs X have failed to include an explanation for why it has retained part of the refundable deposit. The Care Provider has told the Ombudsman it retained £574.29 to cover the last three days of Mr Y’s notice period. The Care Provider says it calculated Mr Y’s 28-day period of notice from 6 April to 3 May 2018. Mrs X cancelled the direct debit that paid for Mr Y’s fees at the end of April, which meant she owed fees for the last three days of the notice period in May 2018. The Care Provider is unable to show that it invoiced Mrs X for these fees or told her the dates it had calculated for Mr Y’s notice period. The Care Provider’s failure to repeatedly explain the reason for retaining part of the refundable deposit is fault and an issue it did not address when responding to Mrs X’s complaint, despite her raising this. Mr Y had moved out of the Care Home by this point (on 18 April 2018), so there is no cost of care for the Care Provider to bear over these three days.
49. The Care Provider’s offer of £5,000 in recognition of the shortcomings in service and the delay in complaint response appears appropriate given the issues it identified. The Care Provider’s response includes the action it would take with providing further staff training to help address some of the issues identified by Mrs X’s complaint.

Agreed action

50. The Care Provider’s offer to pay Mrs X £5,000 is an appropriate outcome based on the faults that have occurred with Mr Y’s care. The Ombudsman recommends the Care Provider makes this payment to remedy the injustice suffered by Mrs X and Mr Y.
51. The Care Provider had not addressed the retention of part of Mrs X’s deposit when responding to her complaint. This is fault and the Care Provider has agreed to refund the remainder of the deposit. There is a discrepancy in the amount retained, which the Care Provider should resolve with Mrs X before making this payment.
52. The Care Provider has agreed to complete the actions stated in paragraphs 49 and 50 within one month of my final decision.

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Final decision

53. For reasons explained above, I have upheld Mrs X’s complaint. I am satisfied with the action the Care Provider will carry out to remedy the complaint. I have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman