Sandwell Metropolitan Borough Council (19 000 504)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 15 Nov 2019

The Ombudsman's final decision:

Summary: Mr X complained about the quality of care provided to his mother at two Council commissioned care homes. The Council was at fault. Care home A was unable to meet Mrs Y’s needs and the Council took too long to move her. It agreed Mrs Y could move to care home B even though this provided similar care to care home A and so could not meet her needs. It then failed to move Mrs Y who was ultimately admitted to hospital under the Mental Health Act for assessment. The Council’s complaint response was also poor. The Council has agreed to reduce the care bill, make a payment to Mr X to acknowledge the distress and frustration he was caused and carry out a lessons learned exercise to prevent a recurrence of the faults.

The complaint

  1. Mr X complained about the quality of care provided to his mother, Mrs Y, at two care homes: Matthias House (care home A) and Bloomfield Court (care home B).
  2. He complained care home A failed to meet Mrs Y’s care needs. It left her in bed for long periods and failed to maintain her personal hygiene so that family members had to visit to carry out personal care.
  3. He complained care home B also failed to meet Mrs Y’s care needs. It left her in bed for prolonged periods, failed to maintain her personal hygiene and failed to apply prescribed medication.
  4. Mr X says this caused Mrs Y distress and a loss of dignity and she has been charged for poor care. He says this caused him frustration and distress, and time and trouble in having to deliver Mrs Y’s personal care.

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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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. If we are 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)

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How I considered this complaint

  1. I have considered the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries and information provided by the care providers.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision.
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share the final decision with CQC.

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What I found

  1. 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.
  2. One of the fundamental standards under regulation 9 is about person-centred care. This says each person should receive person-centred care and treatment, based on their individual needs.
  3. Regulation 10 sets out that service users must be treated with dignity and respect. Staff must respect people’s personal preferences, lifestyle and care choices. The guidance sets out that staff should raise any concerns with the provider about their ability to provide planned care. When concerns are raised, the provider should respond appropriately and without delay.
  4. Regulation 17 is about good governance. This includes keeping accurate, complete and detailed records about people receiving care, including records of care provided and decisions made relating to care.
  5. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves
  6. 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.
  7. The Deprivation of Liberty Safeguards (DoLS) 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. Any restriction on a person’s rights or freedoms should be kept to the minimum necessary.
  8. The Mental Capacity Act Code of Practice sets out that a carer or professional must not use restraint just so they can do something more easily. If restraint is necessary to prevent harm to the person who lacks capacity it must be the minimum amount of force for the shortest time possible. If the degree and intensity of restrictions and restraints are so significant as to amount to a deprivation of liberty this must be authorised under a DoLS.
  9. Under section 2 of the Mental Health Act 1983 a patient may be admitted to hospital for 28 days for a period of assessment:
    • Where they are suffering from a mental disorder which warrants their detention in hospital for assessment; and
    • because they ought to be detained in the interests of their own health and safety or with a view to protecting others.

What happened

  1. Mrs Y has dementia. She lived at home and received four care visits a day. In November 2017 the Council made a best interests’ decision to place Mrs Y in care home A as an emergency short term placement, after she was found wandering in the street.

Care Home A

  1. The Council spoke to a manager at care home A, four days after Mrs Y arrived there. The manager reported Mrs Y was refusing personal care and was aggressive to staff. She was eating and drinking well and taking her medication. Care home A started completing behaviour charts to document Mrs Y’s behaviour. The daily records show, during the next two weeks, staff regularly assisted Mrs Y with washing and dressing and she had the occasional shower. Staff completed behavioural records on two occasions when Mrs Y swore and shouted at staff.
  2. In early December the care home noted in Mrs Y’s care plans that she could become verbally and physically aggressive when offered assistance with personal care. She had a poor diet and required encouragement to eat. She had cream for her skin condition but was very uncooperative and was unwilling to let staff apply it to the affected areas. She was reluctant to change clothes and would refuse to change her underwear. She could become very hostile when in the shower. The care plan noted staff should let her wash herself behind the shower curtain.
  3. During December, Mrs Y showed a reluctance to get out of bed and regularly refused support with washing and dressing. When she did allow staff to assist, Mrs Y would allow them to wash and change her top half but refused to wash or change her bottom half. She was also regularly refusing food and drinks. The GP visited in late December as Mrs Y was refusing food and fluids and was being verbally aggressive. Mrs Y would not let the GP check her over. The GP agreed to contact the mental health team and the Community Psychiatric Nurse (CPN) visited several days later. They agreed to liaise with the doctor from the mental health team. The CPN continued to visit Mrs Y regularly.
  4. In early January 2018 the Council officer allocated to Mrs Y’s care held a best interests’ meeting at care home A with Mrs Y’s family, the best interests’ assessor and with input from Mrs Y’s CPN. They noted Mrs Y was not always cooperating with care staff and spent long periods of time in bed. She also refused to shower. There had also been a couple of incidents when Mrs Y intervened when care staff were assisting other residents.
  5. Mr X’s partner agreed to go to the care home to see if she could get Mrs Y to cooperate with showering, with the assistance of one member of staff if required. The CPN confirmed Mrs Y was on the maximum dosage of her prescribed medication. Mr X agreed to purchase an alarm clock to try to get Mrs Y up in the mornings. The meeting concluded it was in Mrs Y’s best interests to remain in the care home as it was unsafe for her to return home. In early January 2018 staff noted on the weight audit chart that Mrs Y had lost weight. She was not eating breakfast or lunch and only eating sandwiches for tea.
  6. The CPN visited a few days after the best interests meeting. The notes record staff reported Mrs Y was physically aggressive and not eating or drinking. She had thrown the alarm clock at the wall. The GP later visited and prescribed antibiotics for a suspected infection.
  7. Care home A applied for a DoLS for Mrs Y. The assessor visited care home A in mid-January. The assessment recorded Mrs Y liked to sleep in and was challenging if staff tried to get her up before 11am. She had a poor appetite and would forget to eat and drink unless prompted, and family were providing support with personal care. The assessor noted the care provider should work more effectively with the family to address Mrs Y’s personal care needs and to look at whether the care home was the right environment for Mrs Y. The mental health assessment competed as part of the DoLS process noted Mrs Y had poor memory functions, poor orientation to time and place and poor ability to understand questions.
  8. The Council officer contacted care home A for an update in mid-January. A staff member explained Mrs Y’s behaviour had not improved and her appetite was poor. She was losing weight and they were unable to weigh her as she refused to stand on the scales. Family were still carrying out personal care as she would not let staff assist. The CPN was monitoring Mrs Y weekly and the Doctor had prescribed new medication to try and boost her appetite. The Council officer spoke to the DoLS assessor who advised they considered the placement unsuitable for Mrs Y’s needs.
  9. The Council officer spoke to Mr X for his view regarding moving Mrs Y to another placement. Mr X stressed care home A was not managing Mrs Y’s personal care, nutrition or mental wellbeing and the family were still supporting Mrs Y with personal care. The Council officer agreed to visit the care home with Mr X. At the visit the family agreed to advise care home staff when they were showering Mrs Y so staff could assist and gradually take over her personal care needs.
  10. In mid-February 2018 Mr X informed the Council officer that a staff member from care home B would be assessing Mrs Y with a view to moving her there. The pre-admission assessment noted Mrs Y had dementia. In relation to mood, the yes/no boxes were left blank in relation to ‘does the customer experience episodes of low mood’, ‘does the customer experience fluctuating moods’, ‘is there anything in particular that causes the customer to feel unhappy’ and ‘does the customer become physically aggressive towards others’. The form noted Mrs Y had a CPN. In relation to the question ‘does the customer show signs of anxiety’, the handwritten comment stated ‘only around personal care’.
  11. Under mobility assessment ‘does the customer require assistance to bath/shower’ the handwritten comment stated ‘guidance and support, prompting’. Under the personal care assessment, it stated she needed prompting with personal care, guidance with dressing, she preferred a shower/body wash and needed guidance with mouth care. The nutrition assessment noted Mrs Y did not have any special requirements but required prompting. The sleeping assessment noted Mrs Y slept in her clothes on top of the bed.
  12. The Council officer met with Mr X the following week. Mr X was not happy as care home A was not meeting Mrs Y’s needs. He and another relative had visited that day to shower Mrs Y as care staff were still not managing to do it. He said staff were not applying her prescribed skin creams for her skin condition or encouraging her to brush her teeth. He wanted Mrs Y to move to the alternative home. The Council officer spoke to care home B who confirmed they could take Mrs Y.

Care Home B

  1. Mrs Y moved to care home B in late February 2018.
  2. In March 2018 the manager at care home B contacted the Council’s Quality Team (who provide guidance and advice to improve the quality of care provision) to request support. Since her admission Mrs Y’s behaviours had escalated and she was spending more time in bed, was refusing personal care and medication and was physically aggressive towards care staff. Mr X and his family were continuing to support Mrs Y with bathing and showering. The Quality Team noted the Doctor from the mental health team had visited and in his professional opinion Mrs Y was inappropriately placed. The Quality Team advised the care home to seek approval for covert medication, to be firm but non-confrontational with Mrs Y, to establish a routine, to use consistent staff and to document all events and incidents.
  3. The Council officer spoke to the care home in early April. It confirmed Mrs Y was presenting with the same behaviours although a staff member had managed to change her clothes. The Doctor from the mental health team agreed to visit Mrs Y to assess her medication and mental wellbeing and to look at night medication to help her sleep. The Quality Team visited again in late April. By this time Mrs Y was taking medication but staff were still struggling to manage her personal care needs. The Quality Team raised concerns about the quality of records completed by the care home as there was a lack of evidence of ongoing concerns in the daily records. At a further visit in May 2018 the Quality Team found Mrs Y was taking all her medication but remained non-compliant with personal care. Mr X and family members were visiting to shower Mrs Y. It advised the home to ensure records were accurately completed to reflect the ongoing situation.
  4. In a sample of care records, between 11 May and 5 June 2018, care home B completed 9 distressed behaviour records relating to Mrs Y. They refer to Mrs Y’s physically aggressive behaviour, shouting and kicking staff, particularly when they tried to support her with personal care. The sample care records show staff checked Mrs Y hourly during the night and regularly throughout the day.
  5. In May care home B contacted the Council to request a review. It reported it was unsure what else it could do to support Mrs Y. The Council appointed a social worker to look after Mrs Y’s care. The Council spoke to the care home in early June 2018. The care home said the Doctor from the mental health team had visited and recommended a hospital admission to review Mrs Y’s medication but no bed was available. The Doctor had increased Mrs Y’s medication but felt Mrs Y needed nursing care as her condition had progressed to advanced dementia. The care home said Mrs Y required support from three to four staff members. The Council agreed to look and see if there was alternative provision available.
  6. The Council found a bed in a unit for those with challenging behaviours which assessed Mrs Y and felt it could meet her needs. Mr X did not accept the referral but wanted to meet with the social worker, care home and CPN first. He said he did not want Mrs Y moved around or moved somewhere unless he had seen it.
  7. In June 2018 the care home made a safeguarding referral to the Council with concerns about Mrs Y’s self-neglect and that it was struggling to meet her needs. It had requested a reassessment of the placement which had not happened. The Council closed the safeguarding referral because this was a dispute about a delay in an assessment rather than a safeguarding concern. The GP also raised a safeguarding concern. The social worker spoke to the mental health team and arranged to visit. The safeguarding team closed the referrals as it considered this was a care management issue.
  8. In early June the social worker met with Mr X and a staff member from the care home. The Council had assessed Mrs Y for continuing health care but she did not meet the criteria. The staff at care home B stated they were no longer managing to meet her needs. Mr X had yet to visit alternative providers. The social worker explained if a placement decision was not made soon Mrs Y made need to be moved to a temporary placement in her best interests. They explained that, alternatively, the mental health team Doctor may decide to detain her under the Mental Health Act for a period of assessment in hospital.
  9. The social worker spoke to the mental health team Doctor who advised they were visiting weekly and the home community treatment team was visiting Mrs Y regularly. There was nothing else they could suggest medication wise. The social worker also spoke to Mr X who had visited four alternative placements including the one recommended but did not want to proceed with any of them.
  10. In late June the social worker visited Mrs Y at the care home and met with Mr X and a staff member. Mr X had visited a number of places and was not happy with them. He considered Mrs Y did not need nursing care as she was more cooperative with personal care. The care home reported Mrs Y’s behaviours were a bit better but they were struggling to get her to get out of bed or to take her morning medication. The social worker told Mr X the Doctor advised Mrs Y needed nursing care and they would contact the brokerage team for a list of homes in the area.
  11. In late June 2018 the Council held a multi-disciplinary team meeting with Mr X, the care home and the mental health team Doctor to complete a continuing health care (CHC) decision support tool (to assess whether Mrs Y met the criteria to receive NHS funding for her care if her needs were identified as primarily health related). The care home considered Mrs Y’s behaviour had improved to a level they could manage with support from the mental health team. The social worker noted the care files showed a slight improvement in Mrs Y’s behaviour with no significant incident for eight days. The assessment concluded Mrs Y did not meet the criteria for CHC funding at this time. In early July the social worker telephoned Mr X who said Mrs Y had good and bad days but carers were supporting her with personal care more often.
  12. Two weeks later, in mid-July 2018 the CPN contacted the Council’s Quality Team as they had concerns the care staff were not meeting Mrs Y’s needs and it was not a suitable placement. They reported there continued to be a large number of incidents where Mrs Y was physically aggressive towards staff, was spending long periods in bed, refusing to change her clothes and was refusing medication.
  13. The social worker held a review meeting at the end of July with Mr X and the home manager. Mr X stated Mrs Y’s behaviour had improved 100%. However, the social worker noted case files showed Mrs Y still displayed challenging behaviours including physical aggression towards staff. She had not had her night-time medication at least 7 times over 14 days. The care home advised it could not even administer it covertly as Mrs Y was refusing food and drink at that time. The social worker agreed to review the situation again in three weeks.
  14. In late July 2018 care home B identified a medication error where a staff member had signed to say Mrs Y’s skin cream was applied when it had not been. The care home referred this to the Council’s safeguarding team. Care home B conducted an internal investigation and found it was a communication error. It had contacted the GP who confirmed this would have no adverse effect. The Council found the safeguarding substantiated but closed the case as the care home had taken steps to prevent a recurrence and Mrs X had suffered no ill effects.
  15. In early August the social worker met with the mental health team Doctor, CPN, home manager and Mr X’s daughter. Mr X attended via phone. The care home advised it could not meet Mrs Y’s needs due to her challenging behaviours. Mrs Y was maintaining her weight as she was eating when awake but was sleeping for significant periods. She continued to be physically and verbally abusive when receiving personal care. The Doctor, care home manager, CPN and social worker agreed a best interests’ decision was required regarding care and accommodation as care home B could not meet Mrs Y’s needs. This was scheduled for mid-August.
  16. In mid-August at the best interests’ meeting, two Doctors from the Mental Health Team completed a Mental Health Act assessment and agreed to detain Mrs Y in hospital under section 2 of the Mental Health Act for a period of assessment in hospital. She has since moved to a nursing home.

Complaint response

  1. Mr X complained to the Council about the care provided at care home A and B. He complained Mrs Y did not receive sufficient care and was neglected by staff. It was left to him and the family to support Mrs Y. The Council did not uphold Mr X’s complaint about care home A. It acknowledged the care home struggled to meet Mrs Y’s needs but it involved relevant professionals. It noted ‘the home’s actions did not constitute neglect; moreover the staff were unable to manage your mother’s behaviours and deliver her basic care needs in a safe way while managing the apparent risks’.
  2. Mr X also complained he was not happy with the care provided at care home B. He did not feel his expectation that Mrs Y was washed, fed and changed was unreasonable. the Council investigated and found no evidence, in care home B’s records, of the visits by the Council’s Quality Team or that it acted on the recommendations of the Quality Team. It also found a number of gaps in the records of sleep and rest checks which indicated periods when Mrs Y was in bed for up to 24 hours. It noted the pre-admission assessment was incomplete. It noted concerns were raised by safeguarding but were dealt with through the care management process. It said it did not uphold Mr X’s complaint as ‘if there had been any evidence of neglect, this would have triggered a full safeguarding investigation, following the safeguarding alerts that were raised’.

Findings

  1. Where councils commission care services from a social care provider we can treat the actions of the care provider as if they were the actions of that Council. Any recommendations we make are therefore recommendations for the Council.

Care Home A

  1. The Council placed Mrs Y at care home A as an emergency short term placement. From the start, the care home struggled to cope with Mrs Y’s behaviour. It documented its attempts to support Mrs Y. It involved the GP and mental health team to try and address the problems but this did not resolve them.
  2. The records show Mrs Y resisted attempts to shower and clean her. Guidance says restraint must be kept to a minimum. The care home could not force Mrs Y to shower against her will. Records show she frequently refused to let staff carry out personal care tasks and became aggressive when staff tried to assist her. The records show care home A made significant efforts to assist Mrs Y with personal care. However, she did not receive personal care as she should have. This is fault.
  3. At the best interests meeting in early January 2018 the Council noted Mrs Y was spending long periods of time in bed, refused showers and was not cooperating with personal care. All those at the meeting agreed it was in Mrs Y’s best interests to remain at the care home rather than return home. Mr X agreed he and the family could assist with showering. This was with a view to staff taking over. But the Council failed to properly monitor this or assess if it was working. This is fault. As a result, Mr X or other family members were left to shower Mrs Y from early January 2018 until she moved care homes in mid-February 2018. Mr X and the family were, therefore, put to the additional strain of having to shower Mrs Y. This also impacted on Mrs Y’s dignity and caused her avoidable distress.
  4. Mrs Y’s behaviour did not improve and the best interests’ assessor raised concerns about the suitability of the placement. Care home A did provide some care and support to Mrs Y. However, it could not fully meet her needs. But the Council delayed in intervening and failed to move Mrs Y until mid-February 2018.This delay is fault.

Care Home B

  1. The Council met with Mr X to consider moving Mrs Y. Mr X visited and selected care home B and the Council supported him with arranging this. However, care home B was a similar type of care home to care home A and so it was always unlikely that it would be able to meet her needs. Given Mrs Y’s history of non-compliance with care and physical and verbal aggression, there is no evidence the Council properly considered whether care home B was suitable for Mrs Y. The Council failed to ensure Mrs Y was moved to a suitable care home to meet her needs and this is fault.
  2. Care home B completed a pre-assessment of Mrs Y which was inadequate. A number of sections on the form were blank and there was no acknowledgement of the difficulties care home A had in relation to Mrs Y’s personal care or of Mrs Y’s verbal and physical aggression. This is fault. The poor pre-assessment suggests care home B was not fully aware of Mrs Y’s needs when it agreed to her admission.
  3. Care home B made significant efforts to address Mrs Y’s behaviour. It involved the Council’s Quality Team and contacted the GP and mental health team. It provided some care and support but it could not fully meet Mrs Y’s needs and was unable to do so from the start. The evidence I have considered shows:
    • Mrs Y’s family continued to support the care home with Mrs Y’s showering and personal care as she was reluctant to accept support from staff.
    • In March the Mental Health Team Doctor stated they considered Mrs Y was inappropriately placed.
    • In April the Council’s case officer noted Mrs Y was presenting with the same behaviours.
    • In May the care home contacted the Council to request an assessment as it was not coping with Mrs Y’s behaviours.
    • A sample of records I considered from May and June 2018 showed care home staff regularly checking on Mrs Y but show Mrs Y’s physically and verbally aggressive behaviour continued.
    • The care home and GP raised safeguarding alerts in June regarding their concerns Mrs Y was self-neglecting and her needs were not being met.
  4. The Council assessed Mrs Y and she did not meet the criteria for CHC funding but it was clear care home B was not suitable. The Council identified an alternative care home but Mr X was unwilling to consider this. He visited a number of homes but was unhappy with most of these. Although it was appropriate to consider Mr X’s views, care home B was not suitable. The Council was responsible for considering what was in the best interests of Mrs Y and it should have taken action to move Mrs Y sooner. Mrs Y remained in an unsuitable care home for longer than she should have. This is fault. As a result Mrs Y did not receive all the care she needed.
  5. When a carer failed to apply Mrs Y’s medication, care home B responded appropriately by raising a safeguarding alert and contacting the GP. There was no fault in the way the Council and care home B responded to this concern.

Complaint response

  1. The Council’s findings in the investigation of Mr X’s complaint noted:
    • Staff at care home A were unable to manage Mrs Y’s behaviours and deliver her basic care needs in a safe way while managing the apparent risks;
    • Gaps in care home B’s records with no evidence of action taken in response to the Quality Team’s recommendations;
    • a number of gaps in the records of sleep and rest checks completed by care home B which suggested times when Mrs Y was in bed for up to 24 hours; and
    • the incomplete pre-assessment completed by care home B.
  2. The Council identified a number of faults but then, in conclusion, did not uphold Mr X’s complaint. The investigation report focused purely on whether Mrs Y was neglected but Mr X had also complained he was not happy with the care provided and that Mrs Y’s needs were not met and it is evident that they were not. The complaint response was inadequate and this is fault. This caused Mr X frustration and time and trouble.

Agreed action

  1. The Council has agreed, within one month of the final decision, to:
    • reduce the bill for care home A by 25% to acknowledge Mrs Y’s needs were not fully met by the care home;
    • reduce the bill for care home B by 50% to acknowledge the impact on Mrs Y’s dignity and the distress caused to her by its failure to fully meet her needs; and
    • apologise to Mr X and pay him £250 to acknowledge the distress, time and trouble and frustration he was caused by the Council’s failings.
  2. Within two months of the final decision the Council has agreed to:
    • Carry out a lessons learned exercise regarding assessing the suitability of alternative care homes when it is clear a care home is not meeting a resident’s needs and when it should act in a resident’s best interest to move them.
    • Carry out quality monitoring of care home B’s records to ensure it keeps appropriate records of care provided, interventions by external professionals and to ensure it completes appropriate pre-assessments before care home admission;
    • Provide guidance/training to staff to ensure that the conclusions in complaint responses accurately represent the findings and reflect the complaint made.
  3. It should provide the Ombudsman with evidence it has done this.

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Final decision

  1. I have completed my investigation. I have found evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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