Summary: The care provider considered all relevant factors before it decided it could no longer meet Mr X’s needs.

The complaint

1. Mr and Mrs A (as I shall call the complainants) complain about the way the care provider CBI refused to readmit Mr X, a resident of many years’ standing, after a hospital admission. They also complain about the care provider’s response to their complaint.

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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)

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How I considered this complaint

3. I considered the information provided by the care provider and by Mr and Mrs A. That information includes the safeguarding conclusions, notes from the care provider, the nursing assessment of Mr X’s needs and the complaint correspondence. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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.
5. Regulation 9 says that the care and treatment of service users must be appropriate and meet their needs.
6. Regulation 12 says that care must be provided in a safe way.
7. Enduring Power of Attorney (or EPA) was an authorisation to act on someone else’s behalf in legal and financial matters. They have since been replaced by Lasting Powers of Attorney (which can also give the power to act in health and welfare matters). EPAs had to be registered when someone lost capacity to make their own decisions.
8. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.

What happened

9. Mr X, who is blind, had been resident at the care home since 2009, when he went for a temporary stay but decided to remain permanently. Prior to that he had a long association with the care home. Mr and Mrs A are his friends of many years who act as next of kin for all practical purposes. Another longstanding friend (Mr G) held an unregistered EPA for Mr X. Mr X funded his own care.
10. Mr X’s needs increased considerably after 2016 when he began to suffer with dementia. He paid for a 1:1 carer to provide companionship and additional support. Mr X was assessed as being at very high risk of falls. An overview assessment in 2017 stated that he was unaware of his environment and surroundings. He suffered numerous falls despite staff warning him of danger. He became agitated frequently and upset other residents with his behaviour.
11. Mr G says any implication that Mr X suffered from severe dementia is “unfounded”: however, I note the care provider applied for DoLS authorisation for Mr X in 2016. Mr G says the difficulties caused for other residents stemmed from Mr X bumping into people because of his blindness. The care home notes clearly document that it was Mr X’s behaviour – shouting during activities, undressing, opening his bowels in communal areas – which was the source of distress for other residents.
12. In March 2018 Mr X suffered another fall and was admitted to hospital with a broken hip. A safeguarding investigation by the local council concluded that although the care provider was doing its best to meet his needs, there was some evidence of neglect as the level and severity of falls had not been safeguarded. The safeguarding investigation recommended a reassessment of needs and noted the desired outcome was for Mr X “to be protected and safe either in residential care EMI or nursing care”. The hospital staff assessed Mr X as requiring nursing care.
13. A nursing assessment was completed in May by a senior nurse on the care home’s nursing unit. Mr X was described as having very high dependency needs. In hospital he was resident in a four-bed room with a member of staff always in attendance. The assessor said during the assessment Mr X was agitated and trying to get out of bed, pulling at her clothes and trying to get his legs over the bedrails. (Mr G says Mr X was immobile but the nursing assessment describes him as bed-bound but very restless). Mr X was said to be at risk nutritionally; and at risk of sustaining compromised skin integrity due to his weight loss, restricted mobility, agitated behaviour and incontinence. The assessment concluded he needed 1:1 care on a 24-hour basis which the assessor said she could not provide in the nursing unit.
14. The care home manager told Mr and Mrs A and Mr G that Mr X would have to find another home on discharge from hospital. Mr G wrote to the Chief Executive of the CBI. He said it could not be right that Mr X was not allowed to return to the home.
15. The care home’s director of care set out the background to the decision not to readmit Mr X. She said concerns had been raised with Mr A as long ago as 2016 about Mr X’s increasing needs. She said it was unsafe to leave him on his own and staff who were supposed to be taking their breaks were spending them with Mr X instead. She said he need a specialist placement “in an EMI unit” where he could have 24-hour care and 1:1 support as well as assistance with all aspects of daily living.
16. The Chief Executive wrote to Mr G. He sent a copy of the director of care’s report. He said the care home was no longer able to meet Mr X’s needs and had probably been caring for him at some risk for some time.
17. In July Mr and Mrs A wrote to the Trustees of the CBI with a complaint about the decision not to readmit Mr X. They said within days of the hospital’s assessment that Mr X needed a nursing placement, they were told by the NHS that the care home had refused to accept him back into its nursing unit as there were no beds available. Following the assessment in May, the care home manager had written to confirm that the initial decision remained unaltered and the care home could not meet Mr X’s needs in its nursing unit because of his high level of dependency related to his confusion and the consequent impact on the care of other residents.
18. Mr and Mrs A said Mr X had ample funds to supplement the care provided by the nursing unit. They said they did not think the care provider had considered all the possible solutions to Mr X’s return.
19. One of the Trustees responded to Mr and Mrs A. He said there had been extensive discussion following the assessment of Mr X in hospital, but the board had to rely on the professional judgement of its senior staff in reaching the decision not to readmit Mr X.
20. Over the next few months Mr and Mrs A continued to correspond with the Trustees to express their concerns about the way Mr X had been treated by the care provider. In March 2019 they complained to the Ombudsman after a final response from the Trustees which suggested the correspondence should close. They complained that the care provider had not given them (as Mr X’s representatives) an opportunity to be properly involved in the decision that he should not return to the care home. The said the Trustees had taken the view that the decision should be taken by the professional staff.
21. The care provider says at the time of the initial hospital assessment that Mr X needed nursing care, there were no vacancies on the nursing unit. She says when a bed became available in May, the nursing unit manager assessed Mr X but reached the conclusion his needs could not be met at the home.
22. The care provider also says, “(Mr and Mrs G) document that the issues raised were not complaints, rather an expression of sadness that (they)wished to express in relation to what they saw as the Charity losing sight of its own best traditions and commitments. If this would have been raised initially as a formal complaint we would have carried out our own investigation and would have been able to respond to (them) under the realms of our complaints policy and procedures”.

Analysis

23. The care provider’s notes contain considerable detail of the extent of Mr X’s needs associated with his dementia and his high falls risk.
24. The assessment which was completed while Mr X was in hospital is clear in its analysis that Mr X’s needs could not be met safely in the care home.
25. Mr X had already suffered many falls in the care home. In addition, the behaviour associated with his increasing dependency and confusion had a significant impact on the other residents and the extent to which the staff could support him properly. The safeguarding investigation suggested the care provider should have taken action sooner to obtain a formal diagnosis for Mr X.
26. Mr G wrote to the Trustees of the Charity with his expressions of concern about the decision not to accept Mr X back into the home. There was protracted correspondence which explained to Mr G that the Trustees relied on the judgement of professional staff. That led Mr G to the belief that there was unquestioning reliance on professional judgement and no other alternative would be considered. He has also complained about the failure of the care provider to use its complaints procedure properly.
27. The Chief Executive (and the Trustees who responded) might have told Mr G more clearly that the home could no longer meet Mr X’s needs, even with the additional 1:1 care he was funding. The care provider had to comply with the regulations (specifically regulation 12) and could no longer do so.
28. The care provider could have recognised at an early stage that Mr G’s correspondence was in fact a formal complaint. Nevertheless, he did receive responses at different levels of the organisation (including the Chief Executive) and the Ombudsman accepted that a formal final response had been given.

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Final decision

29. It was most upsetting for Mr X, and a matter of great concern to Mr and Mrs A, that he could not return to the care home. However, there is no evidence that the actions of the CBI caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman