The Ombudsman's final decision:
Summary: Mrs R and Miss S complain about the way their mother, Mrs T (deceased), was treated by a Council commissioned care provider following a water leak. There was fault in the Council’s handling of safeguarding concerns about the care provider’s actions just before Mrs T was admitted to hospital with dehydration and pneumonia. The Council also failed to appropriately intervene when the care provider decided to refuse Mrs T’s return from hospital, which caused avoidable distress to Mrs T and her family. The Council has agreed to apologise and make payments to Mrs R and Miss S, as well as improvements to the way in which the care provider records information and liaises with the Council and families or interested parties of residents.
- Mrs R and Miss S are complaining about the way their mother, Mrs T (deceased), was treated by the Council commissioned care provider, following a water leak. Mrs R and Miss S concerns are about:
- the quality of care their mother received following the water leak led to her admission to hospital for pneumonia and dehydration;
- the care home not doing enough to alert them and their mother’s GP about the problems with her taking in fluids for a number of days.
- the Council not taking sufficient action to properly investigate or address the issues about the quality of care provided to their mother.
- the care provider’s refusal to accept Mrs T back to the home following her discharge from hospital. This meant their mother was ‘punished’ unfairly because of Mrs R and Miss S’s complaints to the Council about the quality of care Mrs T received.
- Mrs R and Miss S say their mother’s hospital admission and move to another care home caused significant distress to her and them. They also say their mother struggled considerably when moved to the unfamiliar environment in hospital and then a different care home.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
- 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)
- 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)
How I considered this complaint
- I have spoken to Mrs R and considered the information she and Miss S have provided in support of their complaints.
- I have considered the information the Council and the Care Provider have provided in response to my enquiries.
- I have written to Mrs R and Miss S and the Council with my draft decision and considered their comments.
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the ‘fundamental standards’ which all care providers should meet in delivering care.
- Regulation 14 – “Meeting nutritional and hydration needs”. Care providers must ensure people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so. This is to reduce risks of malnutrition and dehydration. Accompanying CQC guidance says that care providers should have a food and drink strategy. It says nutrition and hydration assessments should follow nationally recognised guidance.
- Regulation 16 – “Receiving and acting on complaints”. This says providers must have effective and accessible complaint handling procedures. Accompanying guidance says all staff must know how to respond when they receive a complaint. Also, that 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 someone complains on their behalf.
- Section 42 of the Care Act 2014 states a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
- This chronology includes key events in this case and does not cover everything that happened.
- Mrs T had been a resident of Beaumont Lodge Nursing Home (the Care Home) since June 2017. Mrs T has a diagnosis of Alzheimer’s disease, osteoporosis, diverticulitis and hypoglycaemia.
- On 12 August 2018, Care Home staff discovered a water leak from the cold water storage tank located on the roof of the building. The Care Home called out for a plumber immediately, who attending within an hour from discovery of the leak. The leak had occurred due to a faulty ball valve in the tank which the plumber replaced. The Care Home experienced loss of electricity in some parts of the building, which meant the lift was not in use for approximately one hour on the day of the leak.
- The water leak caused water to run down some walls in the Care Home, causing damage mainly in the first-floor corridor of the Care Home. The water from the leak had also seeped into the corner of Mrs T’s room, nearest the door. Miss S had taken her mother out for the day of the water leak and says none of the staff at the Care Home mentioned the incident to her when she returned with Mrs T later in the day. They received a letter from the Care Home on 15 August 2018 to say there had been a temporary loss of electricity following the leak and that some residents had been moved while repair work took place.
- Miss S, Mrs R and other members of Mrs T’s family visited her in the Care Home on 18, 19, 20 and 22 August 2018. They noted Mrs T appeared less alert than usual and seemed upset. Miss S spoke to the nurse in charge on 19 August about her mother and asked them to get a doctor to examine Mrs T. The nurse said they would contact Mrs T’s doctor the following day if she appeared no better. Mrs R says she highlighted her concerns about her mother’s condition and the wetness of the wall and carpet in her room to the nurse in charge the following day. Mrs R says the nurse told her a doctor had not been called for Mrs T because her confusion was symptom of her Alzheimer’s. Mrs R says she felt the nurse also dismissed her concerns about the wetness of her mother’s room as they said the heating was being turned on at night to help dry out the walls.
- On 22 August, the Care Home contacted Mrs T’s doctor to request a visit as she appeared less responsive and had only eaten a small amount of breakfast that morning. A paramedic practitioner attended to examine Mrs T and prescribed antibiotics as they suspected she had a urinary tract infection. The Care Home started to record Mrs T’s food and fluid intake separately on this date, given the reduction in her usual intake.
- The Care Home started to monitor Mrs T’s vital signs (temperature, blood pressure, pulse and oxygen levels) daily when she started the course of antibiotics. The Care Home’s daily care records showed Mrs T’s food and fluid intake was lower than usual and she appeared lethargic and drowsy throughout the day.
- Mrs T’s family continued to visit her and remained concerned about her lack of responsiveness. Mrs R and Miss S both requested the Care Home sought further advice from Mrs T’s doctor as she was refusing to eat or drink and was struggling to take the antibiotics in tablet form. The Care Home requested a liquid form of antibiotic for Mrs T on 24 August to make it easier for her to take.
- On 30 August, Miss S received a call from the Care Home to say Mrs T was not eating, drinking or taking her antibiotics. Miss S asked the nurse that called why her mother had not been taken to hospital. Miss S then received a call from the paramedic who had attended to assess Mrs T. Miss S says the paramedic told her they were not to take Mrs T to hospital because her care plan stated this was against her wishes. Miss S challenged this and attended the Care Home with Mrs R to insist their mother was taken to hospital. Mrs T was admitted to hospital and diagnosed with community acquired pneumonia and dehydration.
- Nurses at the hospital where Mrs T was admitted made a safeguarding referral to the Council following concerns highlighted to them by Mrs R and Miss S on 10 September 2018. The Council started its enquiries with the Care Home under section 42 of the Care Act 2014 the following day. The enquiry noted that Mrs T’s daughters suspected her ill health and admission to hospital was caused by the damp in her room following the water leak.
- Mrs R and Miss S arranged a meeting on 13 September 2018 with the Care Home managers to find out what had happened to cause Mrs T’s hospital admission. I only have Miss S’s account of this meeting as neither the Care Home nor the Council have provided information about this. Miss S’s notes show Mrs R asked about the safety of the water system and if testing had been done to rule out the presence of legionella bacteria. The Care Home told Mrs R it would send her details of the risk assessment and water sampling results after the meeting and was subsequently told she could not have this information.
- Mrs R and Miss S asked how long the electricity was out following the leak. The Care Home explained its letter to relatives on 15 August 2018 had been sent in error and the Care Home had only suffered a temporary loss of power for a few hours on the day of the leak.
- Mrs R and Miss S asked why their mother had not been moved out of her room when the walls were very wet, and the room smelt damp. The Care Home managers disagreed that Mrs T’s room was significantly wet or damp and said the electrician had confirmed there were no issues with the electrics in any part of the Care Home.
- Mrs R and Miss S questioned why the Care Home decided not to call Mrs T’s doctor or admit her to hospital. The Care Home manager said there had been a misunderstanding of Mrs T’s care plan and the paramedic attending had incorrectly believed she was on her end of life plan, which excluded admission to hospital. The manager apologised to Mrs R and Miss S for this error.
- The Care Home provided the Council with a chronology of events following the water leak in response to its safeguarding enquiry. The Care Home explained that no residents needed to be moved from their usual rooms as a result of the water leak, but some were moved to allow contractors unrestricted access to the area to renew plaster that had been damaged. The Care Home stated Mrs T’s room had some minor water damage on the walls which needed to be redecorated rather than replastered. The Council also noted that the Care Home had a CQC inspection three days after the leak had occurred and that inspectors had not identified significant issues with the way in which the Care Home dealt with the water leak.
- The hospital considered Mrs T’s discharge on 26 September as it noted she was getting better and had no signs of infection. A further assessment confirmed Mrs T was fit for discharge was completed on 5 October. On 9 October, Mrs T’s family were informed by the hospital that the Care Home had said it was unwilling to accept Mrs T back to the home when discharged.
- Mrs R and Miss S contacted the Council the following day to express their concerns about Mrs T not returning to the Care Home. Doctors at the hospital had recommended Mrs T returned to the home as a familiar environment was likely to aid her recovery. Mrs R and Miss S were very upset the Care Home had refused to take their mother back without discussion. The Council provided details of alternative nursing homes to Mrs T’s family.
- Mrs T remained in hospital until 17 October 2018, when she was discharged to a different care home. Mrs R and Miss S say they and hospital staff struggled to encourage Mrs T to eat and drink while in hospital, and she spent considerable time receiving fluids by intravenous drip as a result. Mrs T was also fed through a tube in her nose during her stay in hospital because she refused to eat.
- The Council concluded its safeguarding enquiries on 24 October 2018 and decided further action was not required. The Council met with managers from the Care Home and Mrs R and Miss S. While Mrs R and Miss S disputed the accuracy of the answers and information the Care Home had given to the Council, they maintained their wish for their mother to return to the home as they believed this was in her best interests. The Care Home managers at the meeting said they felt unable to see a way forward when Mrs T’s family continued to disagree with the Care Home’s handling of matters following the water leak. The Care Home felt their relationship with Mrs T’s family had irretrievably broken down.
- Mrs R and Miss S say their mother was very well cared for in her new care home but never fully recovered from her time in hospital. Mrs T sadly passed away in February 2019.
- The Care Home’s response to the water leak appears to have been prompt and appropriate. It took immediate action to engage contractors to repair the faulty ball valve. Works to repair damaged plasterwork was completed within a week of the leak and the Care Home took steps to ensure there was minimal impact on residents while contractors completed repairs. The Care Home has also altered its procedures for water tank maintenance and now says it will replace the ball valve annually rather than every two years.
- I am however concerned the Care Home’s responses to the Council’s safeguarding enquiry and my enquiries do not match the evidence I have seen from Mrs R and Miss S. The Care Home has said the water damage to Mrs T’s room was minimal. Mrs R and Miss S have provided photographs of the water damage to the walls immediately outside and inside Mrs T’s room. These show the damage occurred in the corner of the room nearest the door. One photograph shows some damage around the light switch in the room, where water had flowed around the switch and caused the paintwork to flake off. The presence of water around an electrical source, no matter how short-lived, is extremely concerning and I can understand Mrs R and Miss S’s worries about the wetness of the room.
- The Council does not appear to have properly explored this issue with the Care Home in the course of its safeguarding enquiries despite Mrs R and Miss S providing it with the same photographic evidence. I have not seen evidence to show what information it received from the Care Home to satisfy itself there was no risk of electric shock to Mrs T, her family or staff at the Care Home. This is fault.
- It is not however possible to establish from the evidence that there was a direct link between the water leak at the Care Home and the decline in Mrs T’s health leading to her hospital admission.
Diet and fluid intake
- I have examined Mrs T’s daily care records from 1 July to 30 August 2018. The records show she appeared bright and alert throughout July and was noted to have taken food and fluids well. Mrs T’s records start to note that she appeared restless, drowsy and lethargic from 16 August but continued to take food and fluids well over the following few days. The Care Home decided to start monitoring Mrs T’s food and fluid intake separately from 22 August when she ate and drank very little at breakfast. This is evidence of good practice and shows the daily care records helped staff make an informed decision to monitor Mrs T more closely.
- The diet and fluid charts show details of the food and drinks offered to Mrs T each day. The records do not however always include specific information about how much fluid Mrs T was taking, there are frequent notes stating she took sips only. The lack of clear recording makes it very difficult to establish how much fluid Mrs T was actually taking each day. There appears no daily target of fluid intake and I have not seen evidence that Mrs T’s diet and fluid needs were reassessed following the sudden reduction in her intake.
- NHS guidelines suggest older people should aim to drink around 1500ml a day to help prevent Acute Kidney Injury. Mrs T’s fluid intake records from 22 to 30 August 2018 show her taking less than half this amount of fluid on all but one day. The Council’s safeguarding enquiry notes do not show what weight it gave to this added factor in Mrs T’s case. The Council’s notes do not refer specifically to Mrs T’s fluid intake, other than to say it considered the Care Home sought medical advice at appropriate times. This seems accurate as the daily care records show the Care Home staff seeking advice from Mrs T’s doctor by telephone every two to three days. It is however unclear how much information the doctor received from the Care Home about Mrs T’s significant lack of fluid intake.
- The diet and fluid intake records also show that Mrs T was missing meals as she was asleep. I am concerned to see no efforts appeared to have been made to provide Mrs T with food when she awoke shortly after lunchtime on one day for example.
- I consider there is evidence to find that Mrs T did not receive enough hydration in the nine days before her admission to hospital. The Care Home did not adequately record her levels of fluid intake and its records show little effort to encourage Mrs T to take fluid more often or to provide her with food at times when she was awake. That was fault, suggesting a breach of the CQC fundamental standards.
The Council’s handling and the Care Home not accepting Mrs T’s return from hospital
- The Council appears at fault for not identifying an issue with Mrs T’s food and fluid intake during its safeguarding enquiries. The Council’s focus in this respect seems to have been predominantly on investigating whether there was a link between the water leak at the Care Home and the decline in Mrs T’s health leading to hospital admission. It appears the Council did not sufficiently explore or consider any wider aspects of Mrs T’s care.
- The Council’s handling of Mrs R and Miss S’s complaints failed to address the concerns they continued to highlight about Care Home’s responses to the safeguarding enquiry. The Council’s complaint responses to Mrs R and Miss S uphold a number of their concerns about the way in which the Care Home handled matters leading up to Mrs T’s hospital admission. The Council however provides no information about any tangible actions it intends to take to resolve these areas of concern with the Care Provider it has commissioned.
- Mrs R and Miss S turned to the Council to help resolve the complaints it had about the care commissioned for their mother. I accept that occasionally councils and care providers will face challenging situations with residents and/or their relatives. I note the CQC issued guidance in November 2016 on “Information on visiting rights in care homes”. While this refers to cases where care homes may seek to impose limits on relatives visiting, the advice and good practice in that guide has relevance to this case. Because it is the actions of Mrs R and Miss S which the Care Provider cited in justifying its decision to refuse Mrs T’s return from hospital.
- The CQC says “if issues or conflict develops, the care provider should first meet with the visitor and try to resolve them […] if the visitor has concerns about a resident’s care these should be acknowledged, understood and acted on”. The guidance says relatives “should feel confident that complaining will not cause problems for them or the resident”. It “should not lead to the resident being asked to move to a different home”.
- The Council’s chronology of events shows the Care Home initially sought to assess Mrs T’s in preparation for her return when options for her discharge were being discussed by the hospital at the end of September 2018. Neither the Council nor the Care Home have provided any explanation for why its decision suddenly changed to refusing Mrs T’s return from hospital after she was deemed medically fit for discharge on 5 October 2018. The Council did not question this or seek to arrange a meeting between the Care Home and Mrs T’s daughters any sooner to help resolve any issues either party may have had.
- Mrs R and Miss S were understandably very upset when they learned the Care Home had refused Mrs T’s return from hospital. They felt strongly that any areas of disagreement between them and the Care Home should not impact on their mother’s care. They were keen to repair the relationship with the Care Home because medical advice suggested it would be better for Mrs T’s recovery to return to a familiar environment. Clearly Mrs R and Miss S must have found their mother’s stay at the care home largely satisfactory as Mrs T lived there since June 2017.
- The Council’s notes of the safeguarding outcomes meeting on 24 October 2018 suggest the continued disagreement between Mrs T’s family and the Care Home about events following the water leak led the Care Home managers to conclude its relationship with the family had irretrievably broken down. The Council’s failure to question or challenge the Care Home’s actions in refusing Mrs T’s return to its care home overlooked her needs. The Council and the Care Home still had a duty of care to Mrs T. If Mrs T was medically fit for discharge the Care Home could not refuse her return where there was no question of it no longer being unable to meet her needs. Its actions here and the Council’s failure to address this show a disregard for her welfare, which at no point seemingly entered the Council’s or the Care Home’s thinking at all.
- Mrs R and Miss S became distressed when learning their mother would inevitably spend longer in hospital because of the Care Home’s decision. Mrs T spent 13 days more than she needed to in hospital while another care home was arranged for her to transfer to. This will have undoubtably caused further distress to Mrs T and her family.
- The Council therefore acted with fault when it failed to appropriately intervene to address the Care Home’s refusal to accept Mrs T back into its care following her discharge from hospital. The Council allowed the Care Home to victimise Mrs T in response to the legitimate concerns raised by her daughters, which was against regulation 20 of the Health and Social Care Act Regulations.
- The faults by the Council and its actions in response to the Care Home outlined above caused injustice to Mrs T, Mrs R and Miss S. In Mrs T’s case, she could not return to a settled place of accommodation and had to stay in hospital longer because of the Care Home’s refusal to let her return. That would not have been in her best interests and was a source of distress. Mrs R and Miss S have suffered distress and upset in feeling their actions in raising concerns about their mother’s care had caused the Care Home to refuse her return.
- It is not possible to remedy any injustice Mrs T might have suffered as a result of the faults identified above. The recommendations listed below seek instead to remedy the injustice Mrs R and Miss S have experienced and improve the Council and Care Home’s processes.
- 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 Home, I have made recommendations to the Council.
- Within one month of the final decision, the Council has agreed to make an apology and payment of £200 each to Mrs R and Miss S (£400 in total) for the distress, time and trouble caused by not properly liaising with them when the Care Home refused Mrs T’s return from hospital and for not investigating their complaints about the Care Home with sufficient rigour.
- Within three months of the final decision, the Council has agreed to ensure the Care Home:
- reviews and revises its nutrition and hydration policy so that users of its services are receiving adequate hydration and it is adequately monitoring this;
- staff receive refresher training to improve recording of information;
- improves processes to ensure there is a clear distinction between care plans and end of life care plans, so these are not confused with each other when residents are examined by medical professionals making decisions about their hospital admission;
- has procedures to work constructively with the Council and residents’ families/interested parties to resolve any issues of concern in line with Regulation 20 of the Health and Social Care Act 2008.
- I have completed my investigation and uphold Mrs R and Miss S’s complaint. Mrs T, Mrs R and Miss S have been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman