Summary: The care provider has acknowledged faults in the actions of some staff and offered a refund of fees in recognition. There were other incidents where Mr X came to harm in the home as a result of actions by other residents or himself and the care provider took appropriate action.

The complaint

1. Mrs P (as I shall call the complainant) complains about the care and treatment of her father Mr X in the Brinnington Hall Care Home. In particular she complains that he suffered abuse by two carers and was not sufficiently well observed to prevent other incidents of harm by other residents or himself.

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The Ombudsman’s role and powers

2. 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). If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

3. I considered all the information I received from Mrs P and from the care provider. I spoke to Mrs P. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

4. 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.
5. 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.
6. Regulation 13 says that service users must be protected from abuse and improper treatment. Care must not be provided in a way that includes acts intended to restrain or control.
7. Regulation 12 says care and treatment must be provided in a safe way for service users. It says that care should be based on risk assessment which balance the needs of people using the service with their rights and preferences.
8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

What happened

10. Mr X became a resident in the care home in 2015. He has dementia. He needs assistance with many activities of daily living and with his personal hygiene.

The first incident

11. In April 2018 Mr X pulled at the clothing of a carer to ask her a question. The resident who was being accompanied by the carer pushed Mr X so he lost balance and hit his arm on a door frame. The care provider recorded this as an isolated incident and reported it to the CQC. It says it increased the monitoring of both residents (I have not seen the contemporaneous care plan which evidences that bit there were no more reported incidents of that nature).

The second incident

12. In November 2018 an agency carer reported that Mr X needed help with personal hygiene after he was incontinent of faeces. Two carers tried to assist him in the shower but Mr X resisted and shouted at them to stop as they were hurting him. The carers continued to shower Mr X, one carer holding his wrists to prevent him hitting out and the other carer pointing the shower at his face. The agency worker said Mr X remained upset and resistant throughout the process.
13. The care provider says as soon as the agency carer reported the incident, the manager went to check on Mr X and found he had fresh bruising to both his wrists. The carers were suspended after a preliminary investigation which found they had shown a lack of compassion and failed to use their training to manage the situation. Both carers were subsequently dismissed as the care provider found reasonable evidence of physical and psychological abuse.
14. The care provider reported the incident to the local council’s adult safeguarding team. The council team was satisfied with the investigation completed by the care provider but put in place additional training. The care provider reported the incident appropriately to the CQC.

The third incident

15. On 27 December 2018 Mr X went into another resident’s room and lay on the bed. The other resident attacked him and caused bruising round his eye, a split lip and bruising of his cheek. A carer was able to distract the other resident.
16. The care provider reported the incident to the local council safeguarding team. It also asked the GP to examine Mr X.
17. The care provider updated Mr X’s care plan to show that he had been placed on close observations. It was concerned he was at risk because of his vulnerability.

The fourth incident

18. On 23 January 2019 Mr X stumbled and fell into a door. He grazed and gashed his face. The care provider called an ambulance and Mr X was taken to hospital so the gash could be glued. He returned to the home later on the same day.
19. Mr X’s care plan shows that he was at high risk of falling. He had motion sensor mats in his room to alert staff when he got up; he walked with the aid of a stick or with the help of staff in the home.

The complaint

20. Mr and Mrs P complained to the home in December 2018 after the suspension of the carers. They complained that it had been the agency responsible for the carer who had witnessed the incident who called them to inform them, not the care provider. They did not feel they had been kept informed of the subsequent investigation. The care provider agreed to a meeting with them
21. Mr and Mrs P expressed concern that similar incidents may have taken place previously with the same carers. They said there should be a reduction of fees to acknowledge that abuse had happened. The care provider said that was possible as a goodwill gesture.
22. The care provider wrote to Mr and Mrs P on 18 December. It said it could not have prevented the incident that occurred as the staff in question had received all the mandatory training but made a decision to act in a different way. It said it had taken the correct action after the incident.
23. The care provider said it was not appropriate to negotiate about a fee reduction as it was open to Mrs P to seek legal advice if she wished. It offered a return of four weeks fees as a goodwill gesture to recognise the distress which had been caused to Mr X and his family by the incident.
24. Mr and Mrs P were unhappy with the response. They told the care provider there was no evidence the abusive practices had not been happening for a long time.
25. Mrs P complained to the Ombudsman. She said she was unhappy that the home had failed to keep her father safe. She said the care provider had refused to give them documents such as call logs or incident reports despite their concerns of earlier abuse. She said the care provider had not answered their complaints properly.
26. The care provider says it accepts completely that the incidence of abuse should not have happened and it apologises for the distress caused to Mr X and his family. It also accepts that it did not respond to the complaint as well as it should have done and has changed its procedure to ensure a management review of responses.
27. Mr X has now moved to a nursing placement at a different home.

Analysis

28. The care provider failed to protect Mr X from abuse. That was fault which caused injustice to Mr X and to his family. The care provider offered as a gesture of goodwill a sum to Mrs P which she did not accept. It is not possible to infer from this one incident however that Mr X had suffered similarly in the past. In my view the sum offered was appropriate to recognize that some harm had occurred and distress was caused.
29. The incident where Mr X was attacked by another resident was distressing for him and for his family. The care provider increased monitoring of Mr X following that incident for his protection. The care provider points out that in a residential setting it does not provide 1:1 care. An element of risk is always likely to be present in the circumstances and in my view the care provider acted appropriately by updating the care plan promptly following the incident. There is no evidence that a failure on the part of the care provider led to the incident in the first place.
30. The response to the complaint did not meet the standards the care provider had set itself and caused additional distress for Mrs P

Agreed action

31. Within one month of my final decision the care provider will offer the equivalent of four weeks’ fees to Mrs P for the reasons described in paragraph 27;
32. Within one month of my final decision the care provider will also offer £250 in recognition of the additional distress caused by the way it responded to the complaint. It has already altered its procedures so I make no other recommendation there.

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Final decision

33. The actions of the care provider caused injustice to Mr X and his family. Completion of the agreed actions will remedy the injustice suffered.

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Investigator's decision on behalf of the Ombudsman