Shropshire Council (19 000 192)

Category : Adult care services > Residential care

Decision : Not upheld

Decision date : 12 Dec 2019

The Ombudsman's final decision:

Summary: The complainant says the Council placed her late husband in a nursing home that did not meet his needs rather than a hospice causing him to suffer and distress to the family. The Council says it arranged a place in a nursing home following an assessment where the nursing home said it could meet the resident’s needs and liaised with hospice staff in providing end of life care. In deciding on the nursing home, the Council considered its proximity to the family home, so the resident benefitted from family visits. The Council investigated complaints about the nursing home but found the care provided acceptable. The Ombudsman finds the Council acted without fault.

The complaint

  1. The complainant whom I shall refer to as Mrs X complains the Council placed her late husband (whom I shall refer to as Mr X), in a nursing home which was not appropriate for his care needs. Mrs X complains the Council failed to properly consider placing Mr X in a hospice which would offer suitable end of life care.
  2. Mrs X says this caused Mr X to receive inadequate care during the last weeks of his life. The family including Mr X’s two daughters and Mrs X found this distressing adding to their anguish on Mr X’s death.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If satisfied with a council’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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. In considering this complaint I have:
    • Spoken with Mrs X and studied the information presented with her complaint;
    • Put enquiries to the Council and reviewed its responses;
    • Researched the relevant law, guidance and policy;
    • Shared my draft decision with Mrs X and the Council and reflected on the comments received.

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What I found

  1. Under the Care Act 2014 and guidance issued under that Act, councils must consider the holistic needs of a resident. This includes having contact with family and friends which should be considered in any decisions on where care will be provided.
  2. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
    • because he or she makes an unwise decision;
    • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
    • before all practicable steps to help the person to do so have been taken without success.
  3. The Council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  4. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
    • Does the person have a general understanding of what decision they need to make and why they need to make it?
    • Does the person have a general understanding of the likely effects of making, or not making, this decision?
    • Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
    • Can the person communicate their decision?
  5. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
  6. If there is a conflict about whether a person has capacity, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.
  7. 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.
  8. The Act provides a checklist for decision makers to decide what is in a person’s best interests. The decision maker must consider if there is a less restrictive choice available that can achieve the same outcome. The checklist includes considering the views of anyone engaged in caring for the person or who has an interest in the person’s welfare. This is subject to it being ‘practicable and appropriate’ to consult them.
  9. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.
  10. The deprivation of liberty safeguards provide protection for those who lack capacity to decide where they wish to receive care or live. A person is considered to have been deprived of their liberty if they lack capacity to consent to care arrangements where they are under continuous supervision and control and not free to leave. Where a care home believes the arrangements for a resident may amount to a deprivation of liberty they must apply to the Council for authorisation of the deprivation.

What happened

  1. In December 2017 Mrs X contacted the Council because she felt Mr X needed support. The Council undertook a mental capacity assessment on 9 January 2018. The assessment decided Mr X lacked capacity to decide on his care and support needs. Mr X had not granted anyone powers of attorney. The Council invited Mrs X to a best interests’ meeting that day. The meeting decided Mr X needed 24-hour care. The Council arranged for Mr X to receive care in a residential care home I shall refer to as Care Home Q on 9 January 2018.
  2. On 15 January 2018 the Council says its adult social care team received a call from the manager of Care Home Q. He told the Council Mr X’s health had declined over the weekend. The manager said Care Home Q could no longer offer Mr X the care needed to meet his care needs.
  3. Mr X’s social worker assessed Mr X and found his health had declined and he now needed nursing care. The social worker began the fast track procedure and contacted Mr X’s GP who confirmed she believed Mr X had entered the last stage of life. The social worker explored whether the local Clinical Commissioning Group (CCG) might fund Mr X’s care through the Continuing Health Care fund.
  4. The local CCG considered offering Mr X hospice care but needed further information. On 17 January 2018 Mrs X emailed the Council expressing concerns about the distance of the hospice proposed from the family home making it difficult for them to visit. The Council says all other hospices in the area did not have any vacancies and are about the same distance from where Mr X’s family live.
  5. The local CCG confirmed on 22 January 2018 Mr X did not qualify for admission to a hospice but did qualify for Funded Nursing Care if placed in a nursing home. The Council challenged the CCG’s view on Mr X’s eligibility for a hospice place. It stressed the GP had diagnosed Mr X as being at the end of life. However, the CCG did not change its view.
  6. The Council arranged another best interest meeting on 22 January 2018. The meeting, attended by Mrs X and other family members, discussed the available choices of a nursing home, including one I shall refer to as Nursing Home Y. Mrs X preferred Mr X to remain at Care Home Q rather than move him. The meeting agreed that with an inoperable brain tumour Mr X would be unlikely to regain capacity or survive more than several weeks. Following discussion, the meeting decided it would serve Mr X’s best interests to move him to Nursing Home Y.
  7. Nursing Home Y assessed Mr X’s needs and said it could meet his needs. Both the Council and CCG decided to place Mr X in Nursing Home Y as a suitable placement to meet his needs. Nursing Home Y is the nearest nursing home to the family that had vacancies, and this enabled them to visit Mr X.
  8. Nursing Home Y Mrs X says, mainly looks after patients with dementia which Mr X did not have. Mrs X says that Mr X experienced unpleasantness and poor care during his stay. This caused distress to her and her family as well as to Mr X.
  9. Mrs X says the Council failed to follow up concerns she expressed to them about the standard of care at Nursing Home Y. On 14 February 2018 Mrs X told the Council she found Mr X soaked in urine on two visits. She found him wearing another person’s clothes on another visit. Mrs X now believed the move to Nursing Home Y had not been in Mr X’s best interests.
  10. Nursing Home Y reviewed Mr X’s needs and arranged a meeting on 14 February 2018 with a nurse, nursing home manager and Mr X’s sister to discuss Mr X’s decline. The meeting decided to apply for deprivation of liberty so they could safeguard Mr X and for him to continue being cared for in Nursing Home Y which had secured doors to prevent him leaving unaccompanied.
  11. The Council says Mr X’s social worker visited Nursing Home Y on 19 February 2018. The officer reviewed Mr X’s case notes and risk assessments and found them up to date. Mr X’s health had declined further. Nursing Home Y had called a doctor to see Mr X over the weekend. The Council say Mrs X told the social worker it was too late to move Mr X. The Council says in the professional opinion of the social worker who visited Mr X he was very poorly and any move to another nursing home may be harmful to him. Therefore, the Council decided not to arrange another move.
  12. The social worker raised Mrs X’s concerns about Mr X’s care with staff. The social worker reviewed Nursing Home Y’s records. Those records show that professional medical staff visited Mr X during February including visits by his GP and McMillan nurses. The GP referred Mr X to the hospice nursing team asking them to visit Nursing Home Y and advise on care. In the social worker’s professional opinion, the records showed Mr X received the care he needed including specialist input from McMillan nurses and hospice nursing advice.
  13. The records show Mrs X regularly raised her concerns with staff in Nursing Home Y. She took up her concerns about finding Mr X soaked in urine. Staff say they explained they changed incontinence pads regularly, but Mr X sometimes removed them resulting in him becoming soiled. Mr X would sometimes urinate on the floor at night having become confused. Nursing Home Y’s staff said Mr X’s incontinence had increased resulting in him needing frequent changes of clothes.
  14. Nursing Home Y cares for mainly dementia patients and Mrs X felt this the wrong environment for Mr X who did not have dementia and was entering the end of life. Staff moved Mr X to a different part of the home as he approached his passing. However, this included being close to other dementia patients in the area who did not understand Mr X had no control over his speech or movement. They would tell him to be quiet, to stop shouting or laugh at him causing distress both to him and his family. Mrs X complained that on one occasion she found Mr X in his chair facing the wall. When she asked staff about this, they told her Mr X had turned his chair around. Mrs X says Mr X could not have done this alone, he was too unwell.
  15. Mr X passed away on 23 February 2018.

The complaint to the council

  1. Mrs X complained to the Council about the care standards in Nursing Home Y. In the complaint Mrs X said the Council decided to move Mr X to Nursing Home Y, she had no choice. Mrs X said the Council did not invite her to, or tell her about all the best interests’ meetings and gave her no choice over where to place Mr X.
  2. The choice of a nursing home that specialised in dementia care Mrs X said denied Mr X the company of other residents who did not have dementia. Staff left him alone for long periods without any stimulation from communication. Mrs X said she found Mr X in sodden urine-soaked clothes on some occasions in which she believed he had been left for hours.
  3. A week after Mr X’s death Mrs X received bills for his care charges. Mrs X told the Council in her complaint had it moved Mr X to a hospice he would have received the right care and at no charge. Mrs X did not see why the family should pay for care she believed Mr X did not receive.
  4. In investigating the case under the statutory complaint’s procedure, the Council spoke with care staff at Nursing Home Y as well as its own staff and reviewed the records.
  5. The Council says staff told its investigation that Mr X did turn his chair to the wall, they did not do so. Records showed staff gave Mr X personal care in line with his care plan, including carrying out observations ever fifteen minutes during the night. The Council says its investigation did not find any evidence of a lack of care or that Nursing Home Y did not meet Mr X’s needs.
  6. The Council recognised it had not completed the financial assessment before Mr X passed away. The Council told Mrs X it still had a legal duty to complete an assessment and charge for the care provided.
  7. The Council sent its first response under the statutory complaints’ procedure to the wrong address. It apologised for that error.

Analysis – was there fault leading to injustice?

  1. My role is to decide if the Council followed the proper procedures in assessing Mr X’s need for residential care and reviewing the care, he received at Nursing Home Y. That includes whether the Council considered all relevant information when reaching a view on the care delivered.
  2. Only Mrs X, her family, the social worker and staff at Nursing Home Y know the details of what care Mr X received. They give differing accounts. Therefore, I must consider the evidence and decide on the balance of probabilities what most likely happened and whether the Council properly considered the concerns raised.
  3. I have read the records the social worker reviewed. They show staff providing personal care to Mr X, noting any concerns such as whether he had passed a peaceful night or not. They show sometimes he removed incontinence pads and needed personal care to restore his comfort and dignity. I accept Mrs X found Mr X sitting in a chair turned to the wall and in wet clothes. I cannot say for how long Mr X experienced these circumstances. Mrs X was right to raise concerns about these conditions.
  4. I cannot say what the right environment would be for someone approaching the end of life. However, I recognise hospices provide a tailored end of life service and understand the family would have preferred that for Mr X. The CCG refused to fund that care. Nursing Home Y assessed Mr X and said it could meet Mr X’s needs. At the best interests meeting it was decided to place him there. The Council recognised Mrs X’s preference for a hospice. The meeting had before it all relevant information including Mrs X’s view. Therefore, I find the Council acted without fault in deciding to place Mr X at Nursing Home Y.
  5. Mrs X raised several concerns with both the Council and Nursing Home Y following Mr X’s transfer from Care Home Q. Mrs X found the support offered Mr X at Care Home Q superior to the care he received at Nursing Home Y. Finding Mr X in urine-soaked clothes, then in a chair facing the wall and seeing him shouted at and laughed at by other residents Mrs X feels is not the environment in which Mrs X expected Mr X to spend his final days.
  6. In responding to Mrs X’s concerns the Council visited Nursing Home Y, and Mr X. The social worker inspected the nursing home records and spoke with staff. When deciding if the care provided met Mr X’s needs or if the Council had cause for concerns the social worker considered all relevant information. This included whether moving Mr X to a different care provider might hasten his decline. I find the Council acted without fault in responding to Mrs X’s concerns.
  7. Mr X entered Nursing Home Y on 22 January 2018. He passed away on 23 February 2018. The Council did not complete the financial assessment and issue a bill for his care before Mr X passed away. The Council is under a legal duty to assess Mr X’s liability for charges and to collect those charges. The time taken to assess him and raise the bill is not excessive therefore I find the Council acted without fault in raising the charge. Whether the charges reflect the care the parties contracted for is a matter for the courts it is not for me.
  8. The Council issued its decision on Mrs X’s complaint in November 2018 but sent it to the wrong address. This may be a breach of data protection. The Information Commissioner considers enforcement of data protection regulations and so I make no finding on this issue.

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Final decision

  1. On completion of my investigation I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman

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