Summary: Mr X complains that the Care Provider gave notice to Mrs Y when he complained. He said it did not alert him to her worsening health and failed to take medical advice about her recovery. The Ombudsman finds the Care Provider caused injustice to Mrs Y and Mr X when it gave notice and in some other aspects of the complaint. He recommends the Care Provider apologise to Mr X and review its complaints process. Also, to ensure it has a suitable process in place to deal with difficult relationships.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the care his mother, Mrs Y, received at Vicarage Court Care Home. He says Calsa Care (the Care Provider):
• Did not respond to his complaints properly.
• Gave notice to Mrs Y because of the complaints.
• Did not alert the family to Mrs Y’s critical illness around 17 January 2019.
• Delayed taking medical advice following a significant improvement in Mrs Y’s health In January 2019, which meant she needed medication, food and fluids to be resumed, but was at risk of choking.
• Did not ensure information was handed over adequately at the end of shifts.
• Did not deal adequately with Mrs Y’s tendency to slip from chairs.
• Did not keep Mrs Y’s hands and fingernails clean.
2. Mr X says the Care Provider put Mrs Y in unnecessary discomfort and pain and failed to call a doctor when she needed one. Mrs Y and her family found this traumatic and felt the Care Provider was not caring for her adequately. Mr X would like to ensure other people do not experience similar problems.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
4. 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)
5. 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.

6. (Local Government Act 1974, section 26A(2), as amended)
7. In this case, Mr X is Mrs Y’s son and has enduring powers of attorney for Mrs Y’s property and affairs. We consider him a suitable person to bring this complaint on her behalf.
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

The Care Quality Commission

11. 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.
12. Regulation 16 is about complaints. The guidance says “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”. 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 somebody complains on their behalf”.
13. Regulation 17 is about good governance; the guidance includes the following:
• “Providers must seek professional/expert advice as needed and without delay to help them to identify and make improvements”.
• “Records relating to the care and treatment of each person using the service must be kept and be fit for purpose”.
14. The CQC inspected Vicarage Court Care Home on 5 August 2019 and gave it an overall rating of ‘Good’. However, the previous inspection in June 2018 gave an overall rating of ‘Requires improvement’.

What happened

15. Mrs Y had health conditions which caused her difficulties with mobility and cognition. She had lived in Vicarage Court Care Home for over two years when Mr X says he first complained. Prior to this, he says there had been some minor issues but no reason to complain formally. Mr X did not live locally and therefore it was usually Mr X’s sister, Ms Z, who visited Mrs Y.
16. In response to my draft decision, the Care Provider sent me evidence of an exchange with Mr X in September 2018. Mr X raised some issues around payments and referred to staff as incompetent. The Care Provider’s managing director (MD) wrote to Mr X providing his personal contact information and asking him to direct future concerns to him. Mr X sent a further email about the issue to staff who forwarded it to the MD. The MD wrote to Mr X and said both the staff involved were efficient and had good attention to detail and an apology had been made. He said he didn’t see “how we achieve anything productive in berating her as in your email”.
17. The complaint which Mr X brought to the Ombudsman, was about the Care Provider’s actions when Mrs Y became critically ill in mid January 2019. On 22 January, he complained that:
• Staff had not advised Mrs Y’s family of her worsening condition.
• When Mrs Y improved, staff had reintroduced food without checking with the GP. Staff member A said she would need to check with the doctor if Mrs Y could have soup. However, staff member B gave her porridge, yoghurt, pudding and sandwiches.
• Staff had not asked the GP about restarting Mrs Y’s medication. Staff member B had said on the Friday that she didn’t think Mrs Y would survive the weekend, then on the Monday that she didn’t need to see the doctor about her medication. Mr X said Mrs Y needed a new prescription for liquid medication.
18. Mr X asked the Care Provider to arrange for Mrs Y to see her GP urgently and meanwhile to give Mrs Y liquids only. They were to offer Mrs Y water regularly as she was dehydrated. He said they didn’t know if this was happening when staff member A was not there. He thought staff member B had not dealt with the situation competently.
19. Mr X told me Mrs Y had a “miraculous recovery” as the GP had not expected Mrs Y to recover.
20. Mr X says when he came to the Ombudsman in late February 2019, he had not received a formal response to this complaint. The Care Provider sent Mr X a holding letter on the day it received the complaint. It said the home manager would be carrying out a full investigation into his concerns. The GP had seen Mrs Y that day and advised to give her the smaller tablets; he would consider liquid medication if there were still problems. Another GP would visit the following day. It also said staff were continuing to monitor Mrs Y’s fluid intake and being mindful of her choking risk and ability to swallow. The Care Provider sent another update the following day advising the GP had visited again and they were monitoring the medication and exploring liquid medication. It said a referral had been made to the dietician and SALT for an assessment and Mrs Y had taken a litre of fluid and small amounts of food. Mr X replied and said “It is reassuring news and good to hear about the measures you are now taking”. In the Care Provider’s report to the local council, it noted a meeting with Mr X where he was happy and “felt things are better”. It noted Mr X’s problem with staff member B. The Care Provider told me he felt this was not because of her abilities but because of her personal characteristics.
21. Mr X complained again on 16 February because the previous day, Mrs Y had slipped down in her chair and become distressed about this. When Ms Z, who was visiting, went to find a member of staff to help, the person she asked did not arrive. Ms Z went to find her again. The staff member told her Mrs Y needed two people to support her but she had not found anyone else because they were short of staff. Mr X also said Ms Z had held Mrs Y’s hands to calm her down and found they smelt unpleasant. He asked if Mrs Y was being washed regularly enough and referred to previous visits when her fingernails had been dirty (he had raised a similar issue in July 2018). He asked for the past six weeks’ care records to be available for his visit the following weekend.
22. The Care Provider responded to Mr X’s complaint the following day by email. It said staff member A would investigate Mr Y’s concerns about Mrs Y slipping down in the chairs, address the hand hygiene, and encourage Mrs Y to have a bath if possible. It said that from the remainder of Mr X’s email and previous correspondence, there was an increasing breakdown in trust. It said the situation had become untenable and asked Mr X to find an alternative home for Mrs Y. It gave 28 days notice and said “we will continue to do our best” for Mrs Y until he found a new home for her.
23. The Care Provider told me that Mr X had raised several issues previously and made critical comments about individual staff. Several staff had been upset by Mr X and did not like dealing with him. He also told me that Mr X did not visit often because he lived some distance away so his main contact was by phone or email.
24. I looked at all the Care Provider’s records for Mrs Y from August 2018 until she left Vicarage Court. All information is on an electronic system which staff access and update throughout the day. I noted an improvement in the later entries which suggests they have improved over the last two years, this included care plan reviews. Later entries considered the care plan and whether it was still relevant, however earlier entries were more like daily notes. The Care Provider says all incoming staff arrive 15 minutes before their shift start for handover. Handover notes were brief, informative and included relevant information.
25. I found many references to contact with Mrs Y’s GP and some other professionals such as district nurses, also to her slipping down the chairs. She had regular washes and showers though she became anxious about showers. I also noted occasions when staff had difficulty with oral care because Mrs Y would clamp her mouth shut.
26. Mrs Y’s hygiene care plan from this time states:
• To assist with a bath or shower at least once weekly
• To support with personal cleansing activities throughout bathing
• To use her preferred toiletries
• To assist with having a wash on getting up.
• To encourage to wash her own hands and face
• To assist to brush her hair
• To assist with dressing and help her choose what to wear
27. These entries were split between bathing and shampooing, and personal hygiene. I found it difficult to see at a glance what Mrs Y needed around personal care, though this may be due to not seeing it on screen. There was also another section which dealt with oral hygiene.
28. The comment from the falls/balance care plan review in February said Mrs Y had “slid out of her chair on a few occasions but no falls this month”. I did not see a care plan which addressed the problem Mrs Y had with slipping down in chairs.
29. The records from August 2018 show Mrs Y had been losing weight, vomiting and, on occasion, spitting out her tablets. She needed much prompting to successfully take the medication. Her food and fluid intake varied with good days and bad days. She experienced occasional vomiting and fluctuating food and fluid intake through to January. In January 2019, Mrs Y became more unwell with a chest infection. She started liquid antibiotics as she was having problems swallowing. On 5 January, the records note her temperature and that she was quite warm. Staff gave her paracetamol and opened her window “a crack”. At teatime, she ate quite well and the following day family visited.
30. On 7 January 2019, the records note that Mrs Y appeared a lot brighter and was not chesty. On 9 January, the GP said she was a lot better but to complete the antibiotic course.
31. On 14 January, records note a decline in Mrs Y’s health. It notes poor food and fluid intake and she was reluctant to open her mouth. The following day the GP visited and prescribed more antibiotics. The family visited.
32. On 16 January, the GP called to ask for an update. The Care Provider’s records show he said he would speak to the family, which he did.
33. On 17 January, the records note an abscess had broken. The GP visited and spoke to Mr X who said Mrs Y should stay at the home, not go to hospital if she worsened. Mr X understood from the GP that Mrs Y was nearing the end of her life.
34. On 18 January, the out of hours GP visited and arranged for interim nursing care until the home could arrange for her to receive 24 hour nursing care. This combined visits from district nurses and support from the qualified nurse on duty in the home.
35. On 19 January, the GP visited and stopped Mrs Y’s regular medication. The following day the records note she was alert and chatty. She took small sips of water.
36. On 21 January, Mrs Y was more settled. She was sliding from the chair and slid from the wheelchair to the floor. The records note she managed a yoghurt, some porridge and some pudding. The Care Provider added her to the list for a GP visit on his routine round in two days.
37. The following day the GP visited because family were unhappy that Mrs Y would wait another day to see him. He advised the care staff to continue with her smaller medication and one that she found difficult to swallow as he did not want her to stop taking it. The care staff asked the GP to discuss this with the family.
38. On 23 January, the GP referred Mrs Y to a speech and language therapist (SALT) for a swallowing assessment, and a dietitian.
39. Mrs Y slipped from her chair to the floor again. Her hand was swollen and the GP sent her to hospital for an xray which was clear.
40. The Care Provider’s complaints process says it will acknowledge complaints within three days and keep the complainant informed of progress. It gives no other timescales and no contact details for the Ombudsman.
41. Mr X says Mrs Y moved to another home where she is much happier.

Was there fault which caused injustice?

42. I found the Care Provider’s complaints process was not satisfactory. Although several of the Care Provider’s responses to Mr X’s concerns were appropriate and helpful, it did not respond adequately to some of the issues. It sent a holding letter advising it would investigate his concerns in January 2019 when Mrs Y became seriously unwell but did not follow this up properly. It should have given Mr X a final response detailing the findings of the investigation and signposted him to the Ombudsman.
43. The Care Provider also gave notice to Mrs Y who was frail. Neither Mr X’s complaint, nor his approach was an adequate reason to give notice and it is likely to have caused Mrs Y a degree of distress. It also caused Mr X some avoidable stress, frustration and inconvenience. This is a potential breach of regulation 16 and therefore I will share a copy of this decision with the CQC.
44. When care providers take on the responsibility of a care package, they should make the utmost effort to ensure it works. They should not see termination of the contract as a suitable course of action except in the most extreme circumstances. The evidence does not suggest this was an extreme circumstance and the Care Provider did not make enough effort. Mr X’s approach to his concerns should not have put Mrs Y’s placement at risk. The Care Provider disagrees with this and says it went to great lengths to help Mr X despite the difficulties. However, the Care Provider’s records do not demonstrate this. The Care Provider advised Mr X that his approach was problematic on only one occasion before giving notice. It should have formally set out the issues it had and the action it would take. The aim of this action should have been to protect Mrs Y’s placement. As Mr X was not a frequent visitor, this should not have been difficult. This would not make giving notice acceptable but would evidence the Care Provider’s concerns and desire to resolve the situation.
45. Fortunately, Mrs Y is now in a home where Mr X believes she is better cared for. This has limited the injustice caused by the Care Provider.
46. The Care Provider did not alert the family to Mrs Y’s worsening health as Mr X felt it should have. Family had visited several times as her health worsened, improved and worsened again so they were already aware she was not well. On 15 January, family visited and on 16 January the GP said he would speak to the family, and he did. It was appropriate that the GP advised the family about Mrs Y’s health and he was no doubt able to provide more detailed information. This caused no injustice.
47. I found the Care Provider was not clear about how it should approach Mrs Y’s unexpected improvement. I consider Mr X’s concerns about the reintroduction of food, fluids and medication were justified. These were not issues arising because of the worker’s personal characteristics but because of her actions. The Care Provider needed an overview from the GP before taking action to reintroduce solid food and medication. By the time the Care Provider involved the GP, Mrs Y had already eaten successfully so his response was informed by this. However, it could have been less successful and the impact significant. I have concluded this caused little injustice as Mrs Y suffered no ill effects from eating and drinking more normally. The Care Provider must make sure that changing circumstances are reflected in the care plans and appropriate advice taken before taking action.
48. I found the records were mostly adequate. I saw no evidence to suggest that handovers were not completed adequately or that this might have contributed to the events. However, I found there was nothing to address the problem Mrs Y had in sliding out of chairs. I would expect to see this treated as a fall on the occasions she reached the floor, and action taken to address the risk of it happening.
49. The records show Mrs Y was not always compliant with washing. She had regular showers but this was not daily; this is not enough to keep someone’s hands fresh and clean. I found the Care Provider failed to deal adequately with Mr X’s complaint about this and should have added to the care plan to address this concern. On the basis that there is nothing in the care plan to ensure her hands were cleaned and/or freshened regularly, I have upheld Mr X’s complaint.

Recommended action

50. To remedy the injustice identified above, I recommended the Care Provider:
• Apologise to Mr X in writing.
• Review its complaints procedure to ensure it responds properly to complaints in future.
• Ensure it has a process in place for dealing with difficult relationships which makes it clear giving notice to someone else is not likely to be acceptable.
• Develop an action plan to ensure staff are aware of how to deal with changes in needs, also risks such as sliding from chairs.
• Send a copy of the reviewed complaints procedure, the procedure for dealing with difficult relationships, and the action plan, to the Ombudsman. It should do this within three months of the final decision.

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Final decision

51. I have completed my investigation and uphold Mr X’s complaints that the Care Provider:
• Did not respond to his complaints properly.
• Gave notice to Mrs Y because of the complaints.
• Delayed taking medical advice following a significant improvement in Mrs Y’s health In January 2019.
• Did not deal adequately with Mrs Y’s tendency to slip from chairs.
• Did not keep Mrs Y’s hands and fingernails clean.
52. I do not intend to uphold Mr X’s complaints that the Care Provider:
• Did not alert the family to Mrs Y’s critical illness around 17 January 2019.
• Did not ensure information was handed over adequately at the end of shifts.

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Investigator's decision on behalf of the Ombudsman