The Ombudsman's final decision:
Summary: Mrs X and Mrs Z complain about the care provided to Mrs Y and that the Care Provider gave notice in response to their complaints. This meant Mrs Y had to move from her home and caused Mrs X and Mrs Y significant stress and anxiety. They also complain that the Council failed to deal adequately with the issues. The Ombudsman finds the Council at fault in all these issues. It has agreed to apologise, reimburse some fees and pay £200 to Mrs X and Mrs Y. It will also take action to avoid similar problems in future.
- The complainants, whom I shall refer to as Mrs X and Mrs Z, complain that the Council provided residential care to their mother, Mrs Y, which was not adequate.
- Provided care which was terminated when Mrs X and Mrs Z complained about the poor service.
- was underweight and taking four types of laxatives.
- was often left sitting in her excrement.
- was poorly handled when hoisted and had bruises on her arms.
- was evicted due to complaints about the care provided.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- 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)
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended). In this case, Mrs Y has granted both Mrs X and Mrs Z powers of attorney for property and financial affairs and we consider them suitable to bring this complaint on her behalf.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- I considered information from the Complainant and from the Council.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
The Care Quality Commission
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.
- 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.
- Regulation 12 is about safe care and treatment; to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. The guidance for providers says:
- “Staff must follow plans and pathways”.
- “Medication reviews must be part of, and align with, people's care and treatment assessments, plans or pathways and should be completed and reviewed regularly when their medication changes”.
- “Sufficient medication should be available in case of emergencies”.
- “Complainants must not be discriminated against or victimised. In particular, people's care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf”.
- “Any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation”.
- “Records relating to the care and treatment of each person using the service must be kept and be fit for purpose”.
- Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body.
- Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them.
- Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong.
- When Mrs Y stayed at Braemar Lodge for respite, in October 2016, she was over 90 years old and had various health conditions and disabilities. These caused her difficulties including with pain, mobility, cognition, breathing and continence.
- Mrs Y settled well and was happy there. In November, Mrs Y and her family agreed to the placement becoming permanent.
- Mrs X, Mrs Z and others of Mrs Y’s family visited her regularly. To avoid unnecessary complication, I will use “Mrs X” to refer to either, or both, Mrs X, Mrs Z, or other family as they all dealt with these events at times.
- Between Mrs Y’s admission to Braemar Lodge and Mrs X’s complaint in February 2018, Council records show no concerns with the care provided. There is also no record of contact from the Care Provider raising concerns about Mrs Y’s family.
- In February 2018, Mrs X raised concerns including staffing levels at Braemar Lodge with the Care Provider and the Council. She noted Mrs Y’s deteriorating health and the constantly changing staff. The Care Provider wrote the same day in response. It said “Obviously the lack of staffing and sickness is a problem at times. However, we have already recognised this and have followed the recruitment process”. It reassured her that she should see more consistent staffing and would offer an appointment for the monthly care plan review and said it would discuss the “palliative register”. Mrs X says this was surprising and concerning to the family but understood this would mean Mrs Y would receive additional care when needed. The Council visited the home two days later and was satisfied with the staffing levels. This was an appropriate response from both the Care Provider and the Council.
- In May, Mrs X complained to the Care Provider with the family’s ongoing concerns which included not having a drink, missing clothes and Mrs Y’s commode not being emptied.
- In June and early July, Mrs X complained to the Care Provider. Council records note this included:
- Waiting over 15 minutes to be let into the home.
- No staff to assist a resident in distress.
- Commode not emptied.
- No juice by Mrs Y’s chair in hot weather.
- Occasions when the Care Provider had run out of Mrs Y’s pain medication including morphine and Co-dydramol.
- Mrs Y’s alarm pendant missing for some weeks; staff said it may have fallen behind the bed.
- Missing laundry.
- CCTV installed without consultation; the manager said Mrs X had been “nosing around”. She had been looking for a flannel and missing laundry.
- Mrs Y left in one of the lounges on her own and unable to get help to go to the toilet.
- Lack of activities and stimulation.
- Mrs Y’s elimination care plan states “sometimes struggles opening her bowels this is monitored and she has appropriate laxatives for this when needed”. Also, “staff to ensure bowels are charted” and “to be reviewed by the incontinence team regular”. When I asked the Council to provide records from the Care Provider, it sent no bowel charts. The Care Provider has since provided these.
- From 27 August 2018 to 15 October, Mrs Y was prescribed Ducosate Sodium, Senna and Lactulose; these are all given to help with constipation. From 16 September, Mrs Y was prescribed Loperamide; this is given to help with diarrhoea. Previously, from 2 July to 26 August, Mrs Y had been prescribed Lactulose, Laxido (also for constipation), and Ducosate Sodium, with Senna added from 30 July. In June and May it was Ducosate Sodium, Lactulose and Laxido. This combination had also changed since March but I saw no record of contact with the GP about changing these medications aside from one note that he had prescribed medication on the bowel chart. I also saw no record of the reasons for the changes. At no point is it recorded that Mrs Y was given four medications on one day.
- Mrs X said when Mrs Y moved to the new home, the GP stopped some of the medication for constipation and the diarrhoea stopped. She was concerned about Mrs Y being given three or four medications for constipation together. Some basic research indicated various medications for constipation might be prescribed together, although I saw nothing about combining them with Loperamide. However, these were on Mrs Y’s prescription, and the GP was responsible for ensuring the prescribed medication was correct. The Care Provider was not responsible for this. It was responsible for ensuring it followed the prescription accurately and I saw nothing to suggest it had given medication which the GP had not prescribed. However, some of the medication record sheets were poorly completed, with dates overwritten and unclear. Staff had not detailed the Senna dosage they gave Mrs Y although the prescription stated “one or two tablets” to be taken as needed. There was no entry against Laxido on 24 July and staff gave her none on many dates. This was not an “as needed” medication and should have been given every night or a reason noted but I saw no reasons.
- Mrs Y’s care plans and risk assessments indicated she was at risk of weight loss. Prior to August, the records appear to note only what food was offered to Mrs Y. In August, the Care Provider began keeping more detailed information about how much she ate. However, the recording of the quantity is not consistent and when I cross referenced some of the information in the daily notes, it did not match the food chart. For example, on 19 August, the daily notes say she ate her breakfast and lunch in the lounge but the food chart says she declined breakfast. On 17 August, the notes say she didn’t eat her breakfast well but the food chart says she ate toast and marmalade and does not indicate a reduced portion. Also, on 2 October, the daily notes say “she has eaten a small amount of breakfast” but the food chart shows she ate the full breakfast of two slices of toast and marmalade. The entries on 8 October are similar. In response to my draft decision, the Care Provider advised me that Mrs Y “normally” ate porridge with her toast. It says this meant when she ate only toast staff considered she hadn’t eat well thus explaining this apparent contradiction. However, from over 24 weeks of food charts, only four days in her last two weeks mentioned porridge, so I do not accept that she normally ate porridge. The Care Provider submitted a record of Mrs Y’s weight in response to my draft decision. This was not included with the documents provided in response to my enquiries although I had asked for it.
- On 18 August the Care Provider’s records show a note to the GP asking if it should double her nutritional supplement shakes as she had lost 4kg in the last two months. The GP response is not clear although the records show a GP visit two days later, it does not refer to weight loss. On 18 September, the Care Provider’s records state it approached the GP again because Mrs Y had lost 4kg in two months. It noted she had nutritional supplement shakes once a day. The handwritten note of the GP response, added to the note of the call, is not all legible but says no further action but offer extra shakes. This is not included in the record of GP/nurse visits and calls. Notes of GP visits or advice are made in various places.
Was there fault which caused injustice?
- Mrs Y had lived at Braemar Lodge for almost 18 months before Mrs X had cause to complain in February 2018. When she did complain, the Care Provider acknowledged there was a problem with staffing and said it had taken action to deal with this. Then, when Mrs X complained in May, it accepted the commode had not been emptied and the problem with the laundry in June and July. At this point, it seems Mrs X had good reason to complain and the Care Provider dealt with the complaints appropriately. However, I saw no appropriate response to Mrs X’s concerns about staff not responding to residents’ calls for help or the ongoing problems with laundry. Some of Mrs X’s complaints and concerns may have seemed irritating to the Care Provider and were relatively minor. However, she had significant concerns over some months which, despite reassurances, had not been addressed adequately and she was becoming more dissatisfied. This was not “nit picking”. Mrs Y and the Council were paying for a service and Mrs Y was entitled to have care which did not fall below the standards required in any way. The Care Provider did not address the key issues like laundry, staffing and call bells in a constructive manner, but raised counter accusations. It also said it may not be able to look after Mrs Y any longer. None of the documentation suggested Mrs Y’s needs had changed significantly or that there were any reasons for this other than the complaints.
- The Care Provider gave notice to Mrs Y who was happy at the home and was over 90 years old. Neither Mrs X’s complaints, nor her approach, was an adequate reason to give notice. This was fault, and the move is likely to have caused Mrs Y some distress. It is fortunate that she settled well into the new home and although this reduces the injustice to Mrs Y, the Care Provider still exposed her to undue risk. It also caused Mrs X some avoidable stress, frustration and inconvenience. I consider this a potential breach of regulation 16 and therefore I will share a copy of this decision with the CQC.
- Termination of the resident’s contract is unlikely to be a suitable course of action to address someone else’s behaviour. The Care Provider did not make enough effort to resolve Mrs X’s valid complaints and concerns which should not have put Mrs Y’s placement at risk. Fortunately, Mrs Y is now in a home where Mrs X believes she is better cared for.
- The delay of over one month before the Council followed up Mrs X’s concerns was fault. It was at fault again when it took the Care Provider’s responses at face value. Had the Council looked at the documentation, it would have seen that it was not adequate. It should also have looked at documentation around staffing and observed whether residents were responded to adequately.
- The poor record keeping was fault and the Council’s failure to follow up the concerns effectively was also fault. This caused Mrs X significant time, trouble, stress and frustration. These faults by the Care Provider also suggest a potential breach of regulations 12, 16, 17 and 20.
- 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. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
- To remedy the injustice identified above, I recommended the Council:
- Apologise to Mrs Y if appropriate, also Mrs X and Mrs Z, setting out the faults identified above and the action it will take to address these.
- Arrange for a similar apology from the Care Provider.
- Reimburse Mrs Y with any care fees paid relating to the time after she left Braemar Lodge, also 25% of her last two weeks in the home.
- Pay Mrs X and Mrs Z £150 each for the time, trouble and distress caused.
- Review the service provided at Braemar Lodge to ensure it meets the standards required with particular focus on the issues raised in this case.
- Raise awareness with staff who deal with complaints to ensure:
- they understand where it might not be appropriate to rely on a Care Provider’s account in response to a complaint.
- how to check out concerns such as those raised by Mrs X or when these should be passed to the contracts team to investigate.
- Complaints are only put on hold during a safeguarding process and are responded to as soon as that ends.
- Ensure care providers in its area are clear that it is not acceptable to give notice in response to complaints. Also, that any concerns about other people’s behaviour are raised with the Council.
- Complete actions a-d within one month of the final decision and actions e-h within three months. Also, provide the Ombudsman with evidence of this. Suitable evidence would include copies of the letters, confirmation of payments and an action plan showing progress on the remaining recommendations.
- I have completed my investigation and uphold Mrs X and Mrs Y’s complaints that the Council:
- provided residential care to their mother, Mrs Y, which was not adequate.
- Provided care which was terminated when Mrs X and Mrs Z complained about the poor service.
Investigator's decision on behalf of the Ombudsman