Summary: The care provider should not have told Mrs X it was up to Mr X’s family to ask for a Deprivation of Liberty Safeguard (DOLS) authorisation and should have made that application itself. The care provider failed to take proper steps to lessen the risk of falls. The care provider failed to investigate and respond properly to Mrs X’s complaint. It has apologised and taken steps to review its processes and now agrees to acknowledge the distress caused by a consolatory payment to Mr X’s family. It has also reviewed its staff training.

The complaint

1. Mrs X (as I shall call the complainant) complains that the care provider did not keep her informed of the number of falls suffered by Mr X; put him at further risk by trapping him between a table and chair; left solid food in his room although he required a pureed diet; and dressed him in other residents’ clothes. Mrs X also complains that the care provider’s response to her complaint (after she moved Mr X from the home) included many errors of fact about Mr X.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

4. I considered all the written information provided by Mrs X and the care provider. I spoke to Mrs X. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

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. 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.
7. Regulation 12 says that care and treatment must be provided in a safe way. The guidance says that risk assessments must be reviewed regularly, and providers must do all they can to mitigate risk. It also says that assessments must be carried out in accordance with the Mental Capacity Act; including best interest decision making, lawful restraint, and the application for DOLS orders.
8. In terms of meeting nutritional and hydration needs, (Regulation 14) the guidance says that where a specific diet has been assessed as required, it should be provided in line with the assessment.
9. Regulation 16 says that provides should investigate complaints appropriately and take action to respond to any failings identified.
10. 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. It is the responsibility of the care home, hospital to apply for authorisation.

What happened

11. Mr X, who has dementia, was admitted to the care home in January 2018 from hospital, where he had been treated for urinary tract infections and dehydration. The pre-admission assessment which the care provider completed noted that he was at high risk of falls (he had fallen in hospital). His skin was described as intact. It was also noted that he struggled to settle at night in a strange environment. The pre-admission assessment also contains a note that a DOLS application was to be submitted.
12. Mr X was admitted to the care home on 17 January. On his first afternoon he fell – he told carers he had felt dizzy on standing. The care home records show frequent occurrences of falls from his chair or wheelchair over the next few weeks. A form completed at the home on 17 January notes that Mr X was unable to keep himself safe from falling and said the care provider’s actions in supervising him and giving frequent reminders were taken in his best interests. The care provider did not apply for a DOLS authorisation.
13. In March the care provider carried out a review assessment of Mr X’s needs. The assessment said Mr X risked falls because of his lack of insight into his care needs. He had difficulty swallowing. It also said he was at risk of pressure sores not only because of his general ill-health but also because he was “fidgety”. The care home records contain a Waterlow pressure sore assessment which assesses him at high risk of developing pressure sores. A detailed falls risk assessment scored him at high risk.
14. Mr X developed pressure sores on his heel. The care provider made a referral to the District Nurse who was then responsible for the care and treatment of the pressure sore. Mr X had a pressure relieving cushion for his chair and was given a lift boot to raise his foot from the floor and prevent him rubbing his heel on the carpet. The care plan put in place by the care provider stipulated that his skin should be checked regularly and concerns reported.
15. In March the GP saw Mr X at the home’s request because of concerns about his daytime drowsiness and his swallowing difficulties. The care home records show the GP stopped one of Mr X’s medications and also referred him to the Speech and Language Therapist in view of his choking risk. In March a visiting social worker reported to the home manager that Mr X had chocolate and biscuits available to him in his room. The manager noted that no solid food should be left in his room and he should only eat biscuits when supervised.
16. Mr X was assessed by a physiotherapist in the home and in April, the physiotherapist wrote to the care provider. He said he had now seen Mr X three times to see if he could improve mobility (he said Mrs X had told him another physiotherapist had said it was ‘useless’ to try and get him to walk again). He said there had been a big improvement in Mr X’s ability to remember and to mobilise and he offered advice on how the care provider could help him safely and prevent further falls, as he said it was likely he would try and stand on his own and should instead have practise with 2 people helping him to stand so he would learn that behaviour.
17. Mr X was also assessed by an Occupational Therapist (OT) in April after he was referred by his GP because of the number of falls he suffered. The OT reported that the chair he was using had too shallow a seat depth as he had long legs. Her report went on “The Firs advise that (Mr X) generally sits in the lounge area during the day so that he is visible to staff, and a table is sited in front of him to try to discourage him from attempting to stand independently. Largely the reported falls are a ‘slip’ from the chair or bed where (Mr X) tried to stand himself, is unable to do so without support and then slides to the floor”. She gave advice about a different chair and said “Having a table in front of him with something on it to interest him may help to deter him from standing independently”.
18. On 25 April Mr X was found on the floor in the lounge after he had tried to move the table in front of him to stand up. On 11 May he fell again and hit his head. The home’s notes show it called an ambulance but “they couldn’t do anything for him because he refused to have glue or stitch”. Mrs X was present at the time the ambulance arrived: she says Mr X did not refuse treatment.
19. Mr X fell again on 17 May and on 18 May Mrs X telephoned the manager. She said she was concerned about the risk of a serious injury from the continued falls. The manager recorded ‘I have explained that we have everything in place to prevent him falling but there is always some risk unless he has 1:1 care which is not provided. (Mrs X) stated that he should be strapped in his chair and a DOLS put in place. I informed her that this had not been requested by any of the MDT and a MCA assessment and a Best Interests would need to be completed but I felt it would be a risk to use as (Mr X) would undo it or even cause himself an injury with it’.
20. Mrs X was unhappy with the care and decided to move Mr X. He moved from the home on 19 May.

The complaint

21. In July Mrs X complained to the care provider about its care and treatment of Mr X. She said he had suffered over 20 falls in the five months in the home and most had not been communicated to her. On one occasion she had to insist the GP was called and was told the carer had just forgotten to do so. She said when she asked why Mr X could not be restrained in his chair the manager told her she (Mrs X) should have asked for a DOLS order. She complained about the pressure sores he developed in the home. She was not allowed to see his care plan until the social worker intervened. She was concerned about his general safety and security in the home and said he spend much of the day trapped behind a chair.
22. Mrs X also said Mr X’s appearance was often unshaven and unkempt and sometimes he was dressed in other residents’ clothes. The care provider failed to replace the batteries in his hearing aid or let her know they were needed. Staff did not take Mr X outside. She said sometimes furniture was tightly packed into the lounge area. She said items were missing when Mr X left the home and no receipts were ever provided for sundry items. She said the manager was unprofessional and at times hostile.
23. The area manager responded in August (after seeking and gaining clarification about the complaints). She said all the incidents had been properly recorded but the care provider had only notified Mrs X about the actual falls, rather than the ‘slips’ out of his chair or bed. She said ‘at no point’ had a DOLS order been discussed. She said the care provider was following the advice of the physiotherapist and the OT in the ways they suggested to prevent Mr X trying to stand independently and risk further falls. She apologised for the furniture in the lounge but said the home was being renovated at the time.
24. The area manager said the home was secure at points of entry and exit. She said (in reference to Mr X’s pressure sores) that the District Nursing staff were informed as soon as the sores were noticed and said the sores were caused by friction as Mr X rubbed his feet on the floor. She added that ‘for his own safety’ Mr X had been moved to a downstairs room. She apologised that other residents’ clothes and (on one occasion) medical records had been left in his room although she said this was the action of the visiting GP. She said the photos she had seen of Mr X were well cared-for and clean-shaven.
25. The area manager said families were routinely informed to supply batteries for hearing aids. She said Mr X had not been taken outside because the risk of falls was deemed too great. She added, ‘Additionally, (Mr X) did not request for this to happen’. Finally she said the manager could provide receipts for the sundry items.
26. Mrs X remined unhappy and complained to the Ombudsman. She said the response had omitted many points of the complaint and was factually wrong about other points – for example Mr X had never been in an upstairs room so could not have been moved downstairs; he was not placed behind a table with an engaging activity, he was not given anything to occupy him; he was actually dressed in other residents’ clothes, they were not simply left in his room. In particular she complained at the suggestion it was her responsibility to ask for a DOLS order.
27. The care provider says much of the conversation about the DOLS authorisation ‘cannot be authenticated’. It acknowledges however it is not the responsibility of the family to take the lead. It says it took in good faith the advice given by the physiotherapist and OT but recognises now that the practice of attempting to keep Mr X behind a table ‘may be seen as’ a deprivation of his liberty. It says dementia training is part of the home’s core programme. The care provider says it very much regrets the comments made in the initial complaint response that Mr X had not asked to go outside. The care provider reiterates the apologies for failure to provide hearing aid batteries, and the way Mr X was dressed in other residents’ clothes. It has also supplied copies of the receipts for expenditure.

Analysis

28. There was a failure on the part of the care provider to understand and implement the basic tenets of the Mental Capacity Act. Although the pre-admission assessment says a DOLS application would be made that did not happen. Instead the home completed its own note that it was taking decisions in Mr X’s best interests.
29. That failure led to a situation where the care home staff regularly deprived Mr X of his liberty (by effectively trapping him between a table and chair) without any necessary safeguards in place. It is not sufficient for the care provider to say it followed the advice of the physiotherapist and OT when what it signally failed to do was to address the issue of Mr X’s capacity and make the necessary DOLS application.
30. The care provider should have kept Mrs X informed of the number of falls suffered by Mr X.
31. The care provider should have ensured that foods which were a choking hazard were not left available in Mr X’s room.
32. The care provider should have responded properly and on a factually correct basis to Mrs X’s initial complaint.
33. In addition to the major points of concern there were numerous other irritants which the care provider should have avoided. Mrs X pointed out that if the care provider assured her the manager could provide receipts, should have done so with its response.

Agreed action

34. Within one month of my final decision, the care provider agrees to offer a payment of £500 to Mr X’s family in recognition that it failed to ensure the correct protocols were in place in respect of a deprivation of his liberty;
35. The care provider has reviewed and repeated its staff training on the Mental Capacity Act;
36. The care provider has reviewed its policies on communications with families about accidents which occur in its homes and sent me the revised procedures.

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Final decision

37. The care provider was at fault and its actions caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman