Summary: Mr X complains about the quality of care provided to Mrs Y at Darwin Court Care Centre. He says he was increasingly concerned at her worsening health and had to move her out. The Ombudsman upholds Mr X’s complaint and recommends the Care Provider waive 50% of the outstanding notice and the dilapidation fees to remedy the increased risk of harm to her.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the quality of care provided to Mrs Y by the Avery Healthcare Group (the Care Provider).
2. Mr X says that, due to the problems which he raised with the Care Provider, Mrs Y has paid her fees until the day she left Darwin Court Care Centre, but she should not pay the full notice period or dilapidation charge and he has therefore withheld this. He says he felt he had to move Mrs Y out as she was unhappy and he was increasingly concerned about her worsening health and the care she was receiving.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If we are satisfied with a Care Provider’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)
6. 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.

7. (Local Government Act 1974, section 26A(2), as amended)

In this case, Mr X holds powers of attorney for property and finance for Mrs Y and is therefore her personal representative in this matter.

8. 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.

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How I considered this complaint

9. I considered information from the Complainant and from the Council.
10. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

11. 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

12. 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.
13. Regulation 9 of the Regulations is about person centred care. The guidance says “Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment”.
14. Regulation 17 is about good governance. The guidance says “providers must securely maintain accurate, complete and detailed records in respect of each person using the service”.
15. The CQC inspected Darwin Court Care Centre in March 2017 and 9 August 2018; it rated the service “Requires Improvement” on both occasions. Issues identified by the CQC which reflect some of the issues in this complaint include:
• Not always enough staff.
• Inconsistency in completing checks/records.
• Support not always as needed or personal to the person.

What happened

16. Mrs Y was resident at Darwin Court Care Centre for around 18 months. It is a large care home with accommodation for up to 112 people. On admission, in 2017, Mrs Y had some sight loss and was unsteady when walking. She was noted to have problems with sleep patterns and was afraid of being alone.
17. I have seen the Care Providers records from 1 December 2017, including some from before that date. The records are not comprehensive; only about 12 days of daily notes when there should be 230 days. It is clear from the records that do exist, that staff found Mrs Y demanding. The records focus on how many times Mrs Y used her buzzer or shouted for help. The professional visit notes show only two GP visits in May and December 2017. The medication administration record (MAR) sheets are not adequately completed having multiple gaps where there should be none, and missing dates. There are also many gaps in the supplementary food record.
18. There is some evidence of positive action taken in response to weight loss for example, and sight loss awareness provided to staff.
19. Although the Care Provider notes on several occasions that Mrs Y had “capacity”, it completed mental capacity assessments including on 9 April 2017, and on 28 June 2018. In the first assessment it states Mrs Y does not have “an impairment of, or a disturbance in the functioning of the mind or brain” but then continues with the assessment. In the second assessment it says Mrs Y did have an impairment or disturbance. It said “may get confused/disorientated due to loss of vision”. It is not clear that this is an adequate reason to believe her capacity was in any doubt.
20. Mr X says when Mrs Y moved into Darwin Court, he advised Mrs Y had difficulty swallowing tablets and needed liquid antibiotics as she would chew them. Some antibiotics should not be chewed. Mrs X’s notes of a conversation with a senior nurse on 26 January 2017 mention that the doctor will hopefully give her liquid antibiotics. I saw no note of this conversation, or any other reference to liquid antibiotics in the Care Provider’s records until June 2018.
21. Mrs X’s notes of phone calls and visits to the home demonstrate their close involvement and oversight of Mrs Y’s care throughout the time she was there. Some of the actions resulting from conversations Mrs X noted, are evident in the Care Provider’s records. However, I saw no record of most of the discussions themselves.
22. In March 2018 Mr X noted that Mrs Y’s teeth were not clean, she was losing weight and her general health was deteriorating. On 19 March, Mr X complained about a problem with Mrs Y using the dining room, and the taps in her ensuite bathroom. He also said she would like a large print activity planner and, as attorney, he would like to see Mrs Y’s letters, contracts and medical concerns. The Care Provider noted this complaint and that they discussed meetings about Mrs Y’s rudeness to other residents and agreed to change the taps. It is not clear how Mrs Y’s rudeness related to the complaint. The Care Provider gave Mrs Y a large print plan and said they could start emailing copies to Mr X with Mrs Y’s permission, as she had capacity.
23. On 22 March, Mrs Y telephoned Mr X at 9:30am. She was not happy as she had been up since 7am and had not yet had breakfast and had not been got ready.
24. On 27 March, Mrs Y had a fall. The Care Provider did not let Mr X know about this and this is not logged on the accident record. The falls risk assessment was not updated following this accident
25. On 17 April, one of Mrs Y’s friends advised Mr X that Mrs Y was in hospital; the Care Provider had not let him know about this. She had been admitted with a shoulder injury which Mr X believes was caused by the fall the previous week.
26. On 3 May, the Care Provider carried out a close observation of Mrs Y. She was noted to be shouting for help several times. The record notes that at 20:20 Mrs Y asked to go to bed. Staff advised her she would have to wait for the carers and there were only two on shift. At 10pm, staff asked her to stop shouting as other residents were trying to sleep. At 10:30, two hours and ten minutes after first asking, carers helped Mrs Y to bed. I saw no indication why the close observation was completed.
27. A sheet of notepaper in the file dated 13 May, refers to Mrs Y saying one girl wasn’t very nice to her. It says “from now on we are going to answer every time [Mrs Y] buzzes as a pair. Later that day, Mrs Y accused a carer of being nasty to her; the note says all carers heard and the carer had spoken to Mrs Y respectfully as with any other resident.
28. In June, when Mrs Y was moved to the nursing unit as she was having to be hoisted due to her injury. Mr X says the room was “disgusting”; the mattress inappropriate and uncomfortable and the visitor’s chair stained and dirty. All her belongings had been “dumped” on top of the drawers. Mrs Y had previously moved between the nursing and residential units. The Care Provider does not agree with this.
29. In July 2018, Mr X arranged for her to move to another care home. As Mr X was dissatisfied with the service, he paid the fees until the day she left but refused to pay the four weeks’ notice or the dilapidation charge of £495.

Did the Care Provider’s actions cause injustice?

30. The Care Provider’s records do not give enough information about the care provided to Mrs Y for us to be clear whether it was adequate. This is a potential breach of regulations 9 and 17.
31. I am concerned about falls not recorded and risk assessments not updated. On the balance of probability, Mrs Y was at a greater, avoidable, risk of harm than had the Care Provider kept accurate and clear records. This was an injustice to Mrs Y.
32. I am also concerned about staff attitudes towards Mrs Y and the example of her waiting for over two hours to go to bed because only two staff were available. I accept Mrs Y often asked for help, but she needed support with her sight loss and mobility, and because she was afraid of being alone. This was evident from the outset. On the balance of probability, I am satisfied that Mr X had good reason to be concerned about the quality of care provided to Mrs Y.
33. Mrs Y has already paid for the care provided but I agree that four weeks’ notice and a substantial dilapidation charge is excessive under the circumstances.

Agreed action

34. To remedy the avoidable risk of harm caused to Mrs Y, I recommend the Care Provider:
• Waive 50% of the outstanding fees and the dilapidation charge.
• Complete this recommendation immediately on receipt of the final decision and confirm to the Ombudsman.

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Final decision

35. I have completed my investigation and uphold Mr X’s complaint about the quality of care provided to Mrs X. I am satisfied that the action agreed by the Care Provider will put right the injustice it caused.

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Investigator's decision on behalf of the Ombudsman