Summary: There is insufficient evidence to suggest the Care Provider should have sought medical attention earlier. The Care Provider has accepted and apologised for some service failure. The Care Provider’s contract is unclear about when a person should receive a refund on fees, they have pre-paid. The Care Provider has agreed to consider its contract in light of this statement and make a reasoned decision about whether in this case it will refund any fees. There was delay in the complaints process and the complainant has gone to considerable time and trouble in pursuing this complaint. The Care Provider has agreed to make a payment to the complainant to reflect his time and trouble.

The complaint

1. The complainant, whom I refer to as Mr C, complains about services provided to his late friend, who I refer to as Mr D. Mr C complains the Care Provider did not support Mr D appropriately during a respite stay, failed to get a GP to visit despite numerous requests, left Mr D unattended at hospital and incorrectly charged Mr D.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the action has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the care provider, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, sections 34B(8) and (9))

5. Where there is clear evidence of a quantifiable loss arising from a fault, the Ombudsman will normally recommend a financial remedy that repays that loss to the deceased person’s estate. However, where the injustice is less tangible, for example distress, harm, risk or another unfair impact of fault we will not normally seek a substantive remedy in the same way as we might for someone who is still living. We would not expect a private body to make a payment that would enrich a person’s estate.
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. 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.

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How I considered this complaint

8. I considered Mr C’s complaint and the written information he provided. I made enquiries of the Care Provider. I considered the Care Provider’s response and the relevant law and guidance, where relevant, detailed below.
9. I have written to Mr C and the Council with my draft decision and considered any comments they have made.

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What I found

Background information

10. Mr D lived in his own home in the community. Mr D had several health problems including breathing difficulties. He decided to have a period of respite care and went into “Field House Care Home” a residential care home on 12 December 2017.
11. On 26 December Mr D was admitted into hospital because of breathing difficulties. He died in hospital on 29 December. Mr C complains the care provided to Mr D was inadequate, and despite frequent requests the care home failed to get medical help.

Failure to call a GP

What happened

12. The records show on 15 December the GP suggested the Care Provider changed Mr D’s medication.
13. Mr C says between 18 and 21 December, Mr D, Mr C and another friend asked the Care Provider to call a doctor. Mr C says the Care Provider failed to record these requests, ignored them and later fabricated information about why it did not call a doctor when requested.
14. The records report that Mr D was not feeling very well on 21, 22 and 23 December. The district nurse visited Mr D on 21 December to review his medication.
15. On 22 December two of Mr C’s friends asked the care home to call a GP. Mr D said he wanted a GP during one of these calls when care staff took the phone to him so that he could speak to his friend. The care home did not however contact a GP on that day.
16. On 23 December Mr D’s friend asked care staff to call a doctor as Mr D was unwell. The Care Provider contacted, Shopdoc, an out of hours service. The record of the conversation makes no reference to how Mr D was feeling but was centred around the change in Mr D’s medication. Shopdoc suggested that Mr D should see the GP after the bank holiday break. A further note says Mr D reported he was fine and did not need any urgent action.
17. The records show that on 24 December Mr D spent all day in bed and did not eat much. There are two records for the night of 24 December. The carer records in the first log 20:00-08:00 Mr D “was in bed on my arrival. Woke during the night but soon went back to sleep. Checked regularly. No current concerns.”
18. On a separate record a different carer records that in the early hours of the morning care staff had to call an ambulance as Mr D was struggling with his breathing.
19. Mr D went to hospital on his own with no bag packed. Mr C says because of this the hospital made the decision to catheterise Mr D. The Care Provider records that it contacted Mr D’s friend at 9 am. The Care Provider has apologised for failing to call a friend earlier. It says it did not ring one of the friends as it was aware she was on holiday. They tried the other number they had but there was no answer. The Care Provider has apologised for this. It has also apologised for failing to pack a bag for Mr D when he went into hospital.

What should have happened

20. The Care Provider’s policies say that any deterioration in a resident’s health should be reported to an acute team, and care staff should take observations.
21. The policy also says where possible staff should accompany residents to hospital. Care staff should also contact next of kin at the first available opportunity if there is a move to hospital or if someone’s health deteriorates.
22. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks. 
23. Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”

Is there fault causing injustice?

24. A district nurse visited Mr D on 21 December and was not sufficiently concerned about Mr D’s health to warrant further medical intervention. I am therefore unable to say Mr D needed medical help at this point.
25. Between the 21 December and 25 December there is a difference of opinion about whether Mr D needed medical care. The record of the conversation with Shopdoc for 23 December does not include the same concerns as Mr C, it focuses on changes in medication, not Mr D’s general health.
26. I am however unable to say on balance that even with this information a doctor would have seen Mr D earlier. This is because in this period there is no record of Mr D having breathlessness, which was the primary reason for his admission into hospital. Mr D himself spoke with care staff and said that he did not feel he needed a doctor as a matter of urgency and could wait until the surgery reopened after the Christmas break.
27. The Care Provider is at fault for pre-recording on 24 December. This is a potential breach of Regulation 17. I am however unable to say Mr D was caused injustice by this failure. This is because a full contemporaneous record was completed by another carer the same night.
28. I would however suggest the Care Provider takes action to remind all staff of the importance of making contemporaneous records.
29. The Care Provider is at fault for failing to record and contact next of kin in a timely manner. The Care Provider has apologised for this and will review its procedures to ensure staff members record contact details properly and remind them of the importance of contacting next of kin as soon as possible. I consider this is enough to remedy this aspect of the complaint.
30. The Care Provider failed to pack a bag for Mr D when he went into hospital. Mr C says this failure meant Mr C did not have, amongst other things, his dentures and walking aids. He says this led to the hospital deciding to catheterise. While I appreciate Mr D would have had some discomfort not having his personal belongings, or a friend with him; I am unable to say there is a link with the hospital’s decision to have Mr D catheterised.

Fees

What happened

31. Mr D paid his care fees in advance. He paid until 2 January 2018.
32. Mr C says during a meeting with the Care Provider it agreed to refund four days of fees Mr D had already paid. This appears to be the period between Mr D’s death, 29 December and the end of the contract period. There is no record of this agreement and the Care Provider has not agreed to refund any money. The minutes of the meeting say management would consider whether it should make a refund.

What should have happened

33. Mr D signed a contract. The associated terms and conditions are silent on what happens when a person dies before the end of a contract period, where fees have been pre-paid.
34. Care Quality Commission (Registration) Regulations 2009: Regulation 19 says care providers must make written information available 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.

Is there fault causing injustice?

35. Until Mr D’s death, there is nothing in the care records of conversations between the hospital and care staff to suggest that Mr D could not return to the care home. However, Mr D prepaid for a period which he was unable to use because of his death.
36. The contract lacks clarity about what proportion of fees a person should pay if they are unable to return to the care home in circumstances such as Mr D. I consider this is fault. The Care Provider has not provided a reason or explanation about why it has decided not to refund a proportion of the care fees to Mr D’s estate, I consider this is fault. As a result of this fault Mr D potentially has money that is owed to his estate.

Complaint handling

What happened

37. There is dispute about when an official complaint was made. Mr C says that it was on 27 December 2017 when a friend spoke about his concerns to a senior carer. The Care Provider says it received a formal complaint from Mr C on 24 January 2018 and that the issues discussed on 27 December were resolved at the time. A record of the conversation says the carer would, “raise these concerns with management when they are back in the office and we will keep him informed throughout”.
38. On 1 March the Care Provider told Mr C it needed a further 28 days to respond. It sent a letter on 13 April advising of a further extension. The Care Provider sent a stage 1 response to Mr C on 15 May 2018.
39. Mr C responded on 23 July asking for escalation to stage two of the Care Provider’s complaint’s procedure. The Care Provider acknowledged this on 9 August and responded on 20 October. The Care Provider acknowledged a stage 3 request from Mr C on 8 March 2019 and provided a stage three response on 1 April 2019.

What should have happened

40. The Care Provider has a three stage complaint process.
41. Stage 1 – approach the home manager, arrange a meeting, or put the complaint in writing. Where requested the Care Provider will give a written response within 28 days.
42. Stage 2- put the complaint in writing. The Care provider will investigate and respond within 28 days. It will inform the complainant if it needs longer than this and provide a reason for the delay.
43. Stage 3 – the complaint will be reviewed by a senior member of staff and a response sent out within 28 days.
44. Regulation 16 says people should be able to make a complaint about their care and treatment. Care providers must have an effective and accessible system for complaint handling and all complaints must be investigated thoroughly and any necessary action taken where failures have been identified.

Is there fault causing injustice?

45. The Care Provider has accepted and apologised for the delay in responding to Mr C’s complaint at stages 1 and 2 of the process.
46. Mr C has had the time and trouble in both complaining to the Care Provider and responding to the Care Provider’s comments providing additional detail, which resulted in the Care Provider changing its view. The complaint has resulted in the Care Provider apologising for some aspects of the complaint and reviewing parts of its policies and procedures.
47. Complaints where it is unlikely further investigation would lead to a different outcome, or I cannot justify further investigation by the alleged injustice
48. Mr C has detailed several further complaints about service failure by the Care Provider. I have considered these complaints and am aware Mr C feels strongly about them, however I do not intend to investigate them further. This is for several reasons.
49. The first is that many of the complaints such as:-

• the use of the Mr D’s bed and lift;
• separate milk for porridge, providing food on 24 December, refilling water bottles;
• an occasion when Mr D was still in bed at 11am;
• temperature in Mr D’s room and issues related to a room change;

50. centre around two different versions of events with no independent record. It is therefore difficult to reach a sound decision.
51. The second is that Mr D has now died. Even if I were to find service failure it is difficult to say now whether, or the extent to which, Mr D was caused injustice. These include complaints such as:-

• the use of an activity wall, washing left in Mr D’s room;
• making Mr D aware of about where the communal phones or that he could eat in an adjoining communal room;
• inability of Mr D to self-medicate.

52. Mr C says the service failure identified should result in a refund of care charges paid. Unless the Ombudsman identifies quantifiable loss, he does not usually recommend a remedy that enriches a deceased person’s estate.
53. The third is that for areas where the Care Provider has identified a short fall in the service it has provided, it has taken appropriate action. In these instances, it is unlikely the Ombudsman would suggest it takes any other actions. Examples include the Care Provider improving procedures for responding to emails and reminding staff about calling next of kin at the earliest opportunity.

Agreed action

54. The Care Provider through its complaints process has recognised some service failure, provided an apology and explained what actions it will take to improve services in the future.
55. In addition to the actions it has already taken I suggested it should:-
1. apologise to Mr C for the further failures I have identified in this statement of reasons;
2. make a payment of £150 to Mr C for his time and trouble in making this complaint;
3. decide whether Mr D’s estate is owed a refund of care fees paid. If he is not, explain why;
4. remind staff about the complaints procedure and what triggers the complaints procedure;
5. review the contract for clarity about refunds in circumstances such as Mr D.
56. In response to my draft decision the Care Provider agreed to carry out the actions above. It also decided Mr D’s estate was not owed a refund and provided a reasoned decision.
57. The Care Provider agreed to complete (a) and (b) within a month of the final decision and (d) to (e) within three months of the final decision.

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Final decision

58. I consider there was service failure by the Care Provider that caused Mr D injustice. I have now completed my investigation and closed the complaint based on the agreed actions above.
59. As there are potential breaches of the fundamental standards of care, I have also sent a copy of this statement to CQC.

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Investigator's decision on behalf of the Ombudsman