Summary: There was fault in the Home’s records relating to an incident involving Mr C. There was fault in the way the Home evicted Mr C, the eviction itself, the lack of notice and the contract upon which the eviction was based. The Home has agreed to apologise to Mr C and his family, pay back three weeks’ fees and £300, review its contract and ensure that managers are training in managing and recording incidents.

The complaint

1. Mr B complains on behalf of his father, Mr C. He complains about Azalea Court nursing home in Enfield. He says the Home delayed taking Mr C to hospital in November 2018 and then evicted him without any valid reason and without proper notice.

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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)
3. 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

4. I have discussed the complaint with Mr B. I have considered the documents that he and the Home have sent, the relevant guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Regulations

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.
6. 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.
7. The CQC has issued guidance on the regulations. This says that:
• The care and treatment must be provided in a safe way for service users. (regulation 12).
• The nutritional and hydration needs of the service user must be met. (regulation 14).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The care provider must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)
8. Regulation 12 says care homes must assess the risks to service users and do everything practicable to mitigate any risks. Incidents that affect the health, safety and welfare of people must be reviewed and thoroughly investigated by competent staff, and monitored to make sure that action is taken to remedy the situation, prevent further occurrences and make sure that improvements are made as a result. Staff who were involved in incidents should receive information about them and this should be shared with others to promote learning.
9. Outcomes of investigations into incidents must be shared with the person concerned and, where relevant, their families, carers and advocates. This is in keeping with regulation 20, the duty of candour.

Visitors’ rights

10. The CQC has guidance on the rights of visitors to care homes. This says that people should feel confident that complaining will not cause problems for them or the resident. For example, it should not affect the visitor’s ability to see their relative and it should not lead to the resident being asked to move to a different home. Care homes must follow regulations that prevent people who complain being discriminated against or victimised.
11. The guidance sets out what a care provider can do if it thinks a visitor poses a risk to a resident to other residents, staff or the running of the service. It says that:
• If an issue of conflict develops, the care provider should first meet with the visitor and try to resolve them.
• If issues cannot be resolved, as an extreme measure the provider may consider placing some conditions that restrict the visitor’s ability to enter the premises.
• Any conditions should be proportionate to the risks of other people or staff and kept under reviews.
• The provider must be able to demonstrate that any conditions are not a response to the visitor raising concerns about the service as this would be a breach of the regulations.

Consumer law and care homes

12. The Competition and Markets Authority has written a document ‘Care homes: consumer law advice for providers.’ This gives information about the care homes’ rights and duties when it wants to evict a resident.
13. The guidance sets out what type of termination terms in a contract would be acceptable.
14. It says: ‘Where you give a wide discretion to terminate the contract (for example, for any reason at all or for vaguely defined reasons), this is likely to infringe consumer law, as such wording is open to misinterpretation and misuse. This is likely to be the case even where you provide residents with advance notice and a refund of prepayments, because of the significant inconvenience and potentially adverse effect on their health and wellbeing.’
15. It gives an example of a term that was likely to be unfair such as: ‘We may end your agreement with you on four weeks’ written notice at any time where you breach any of the terms of this agreement.’
16. The guidance says: ‘Where you intimidate, exploit or pressurise residents or their representatives into leaving the home, this will be unfair under consumer law.’ It gives examples:
• Threatening or asking a resident to leave in reprisal for them making a complaint.
• Not giving the resident at least 28 days’ written notice of termination.
• Back-dating a written notice of termination so that the notice period is reduced.

Care home’s policies

17. The Home’s policy on requests for medical help says:
• ‘it is the responsibility of the duty manager / registered nurse to assess the urgency of any health problems presented by service users and to decide if a condition warrants immediate attention from the person’s GP / out of hours service / paramedical services.’
18. The manager should ensure that relatives are advised fully of the situation.
19. If there is an accident, incident, emergency or near miss, this must be recorded and reported to the management using the incident form.

What happened

20. Mr C went to stay at the Home in May 2018 because he had dementia.
21. The care home’s records include:
• the progress record sheet where the care staff record what care they provided and
• the nursing record sheet where the nurses record any nursing care they provided.
22. I have read the care home’s response and its records. I have also spoken to Mr B who has given me his chronology of events.
23. Mr B says the care home rang him on 21 November 2018. The care home told him that his father had been found unconscious on the floor.
24. The nursing record sheet says Mr C was unresponsive for a few minutes at 10 am on 21 November 2018. The nurse attended and checked Mr C’s vital signs and said these were within the normal range. Mr C had an episode of vomiting and was placed on his right side in a safe position. The nurse rang Mr B to let him know and rang the GP.
25. Mr B says he visited Mr C that afternoon and Mr C was in bed. He was not well.
26. The GP visited Mr C at 3 pm. He said staff should encourage Mr C to drink and he collected some urine to check whether Mr C had a urinary tract infection. The GP then spoke to Mr B and explained the situation. The GP told Mr B that Mr C could stay at the Home at the moment but they would take him to the hospital if his condition got worse.
27. The record shows Mr C received personal care around 7.30 pm and was not feeling well. He had spent most of the day in bed.
28. Mr B and Mr B’s mother visited Mr C the following day. Mr B says Mr C had pain in his legs and was hiccupping. The carer and Mr B informed the nurse. The progress record sheet says: ‘nurse informed called doctor’. The manager called the GP who advised the Home to provide pain relief to Mr C.
29. On 23 November 2018, Mr C complained of abdominal pain and had a further episode of vomiting. He was not eating or drinking. Mr B visited Mr C and was very concerned. He felt that Mr C should be taken to hospital for further investigation.
30. Later that day, around 3 pm, the nurse noted that Mr C’s condition was deteriorating. Mr C was very pale and lethargic and was unable to drink. The nurse contacted the GP who advised them to take Mr C to hospital.
31. The Home rang Mr B to let him know that Mr C was being transferred to the hospital.
32. The hospital record says Mr C’s diagnosis was inflammation of the oesophagus with hiatus hernia (part of the stomach protruding into the chest) and aspiration pneumonia (pneumonia caused by inhaling food, stomach acid or saliva into the lungs). The record says: ‘the nursing home also mentioned he had a fall 3/7 days ago without any apparent external injury or neurology.’
33. Mr C visited the Home on 28 November 2018. He was angry and said his father had been mistreated and should have been taken to the hospital sooner.
34. On 4 December 2018 Mr B received a letter which had been hand delivered and posted through his letterbox. The letter was dated 29 November 2018. The letter addressed Mr B’s concerns about Mr C’s admission to hospital and explained the timeline and the fact that the Home was acting on the GP’s advice.
35. The letter also said:
• Mr B had said that he would not be paying for Mr C’s care.
• ‘In the potential absence of payment of the outstanding invoices I would have to sadly withdraw the offer of the room by Friday 30 November at 5pm.’
• ‘I have been made aware that you are not happy with the care provided and I fully appreciate this has led to a breakdown in the relationship between Azalea Court and yourself, with this in mind we have requested that the hospital do not discharge your father into our care until such times as we have been able to reconcile the account.’
36. The Home enclosed the November invoice and dates to meet. The letter said:
• ‘If I do not hear from you by close of business on 30 November, I would assume that you do not require the room and would request that the room be vacated.’
37. Mr B went to the Home on 5 December 2018, the day after he received the letter. He had a meeting with the manager and another member of staff. The manager said that one of the staff hand delivered the letter on Thursday 29 November 2018. Mr B said he only received the letter yesterday.
38. The manager said that Mr B had said on 28 November 2018 that Mr C would vacate the room on the following day. Mr B responded that the Home had said it did not want him back.
39. The manager then said there was a breakdown of communication between the family and the Home. He said Mr B had been confrontational towards staff, had said he was not going to pay the bill, that he was unhappy with the care Mr C received and that he was going to put CCTV in the room.
40. Mr B apologised for some of the things he said. He said he had been very worried about Mr C but did not want Mr C to leave the Home.
41. The manager said Mr B’s behaviour was unacceptable and he was not allowed to use CCTV and this was outlined in the terms and conditions. Mr B agreed to clear Mr C’s room on the following day.
42. Mr B made a verbal complaint on 7 December 2018. He said:
• He was very angry and upset as it had taken three days before his father was admitted to hospital.
• The hospital told him his father had sepsis and internal bleeding.
• The Home was evicting Mr C because the manager felt Mr B was aggressive.
• The Home sent a letter asking for a response by 30 November 2018 or Mr C would lose his room.
• He had CCTV evidence which showed that the letter was not delivered until 4 December 2018.
43. Mr C remained in hospital until 11 December 2018. The family found a different care home for him which was further away.
44. A more senior manager had a meeting with Mr B on 10 December 2018 to discuss the complaint. She responded to the complaint on 8 January 2019 and said:
• She had discussed the complaint with the GP. All the medical care that the Home provided was in line with the GP’s advice and the Home had kept Mr B informed throughout.
• She admitted the Home did not deliver the letter on 29 November 2018 as had been previously stated.
• She admitted that Mr C had not been given the correct notice. She said the Home did not provide Mr B with ‘a means of answering the letter sent out to you by not confirming the delivery of the letter and given conflicting information as to the date the letter was delivered.’ This meant that Mr B did not have enough time to organise a meeting with the manager.
• She apologised and gave Mr C a week’s credit of the fees for November.
45. I have seen the contract between Mr C and the Home. This says: ‘You may terminate your occupation of a room in the Home on formal written notice of one month… We reserve the right to terminate your occupation by giving the same length of notice in writing.’

Analysis

The days before the hospital admission

46. I cannot investigate the actions of the GP as they are outside of the Ombudsman’s jurisdiction. My investigation into the days before Mr C was admitted to hospital is therefore quite limited.
47. The Home’s policy says that, if there are health problems, a nurse or the manager should assess the situation. I note that, when Mr C was first discovered, the nurse was involved and checked Mr C’s vital signs. The nurse contacted the GP who gave advice. In the next days the Home continued to act on the GP’s advice and either the nurse or the manager were involved.
48. I cannot question the clinical judgment of the medical professionals involved, but the Home acted in line with its policy in so far as the appropriate people were involved in the decision making.
49. However, there was fault in the way the Home recorded the incident as there was no incident report for the incident on 21 November 2018. A record is vital in cases such as this, both to understand the cause and then to carry out a risk assessment and, if necessary, a change in the care plan to minimise the chance of a further occurrence. The failure to provide this is fault.

The eviction of Mr C

50. There is fault in the Home’s actions relating to Mr C’s eviction. There was fault in:
• the eviction itself,
• the way the notice was given and
• the Home’s contract.
51. The records show that there were no grounds to evict Mr C. There was no reason why the Home could not continue to care for Mr C. It appears the Home took the decision to evict Mr C because Mr B complained and because of Mr B’s behaviour.
52. The guidance says that, if there are issues with a visitor’s behaviour, the Home should try to resolve this with the visitor and may put conditions on the access to the Home. There was no indication the Home tried to come to any solution with Mr B. Instead it punished Mr C and evicted him. This was fault and not in line with the guidance and consumer law.
53. Secondly, even if the Home had a valid reason to evict Mr C, it should still have given him at least 28 days’ notice. Instead the Home pretended to give Mr C one day’s notice, but in reality, gave him no notice as it served the notice four days after the notice period had expired. This was fault. It was in breach of its own contract and the guidance on consumer law.
54. It was also concerning that the Home lied about the date the letter was posted. The staff member must have known that the letter was not posted when they said it was. It was only because Mr B had CCTV evidence that the lie was uncovered. That was further fault.
55. There is also fault in the contract that Mr C signed. The Home has put a term in the contract that allows it to terminate the contract for no reason, if it gives 4 weeks’ notice. This is not in line with the guidance on consumer law which says that the contract should set out clearly under what circumstances a contract can be terminated and should only allow termination for certain situations.
56. I have considered the injustice Mr C and his family suffered as a result of the fault. Mr C and his family had to cope with the stress of an urgent and unfair eviction. Mr B admits he probably would have moved his father to a different care home after what happened but, because of the short notice, Mr C had to move to a home which was further away from the family.

Agreed action

57. The Home has agreed to take the following actions within one month of the final decision. The Home will:
• Apologise to Mr B and Mr C in writing for the fault acknowledging the errors that were made.
• I note the Home has credited Mr C for one week of fees. The Home should repay Mr C the fees for a further three weeks so that he has been repaid four weeks’ fees as it should have given him four weeks’ notice.
• Pay Mr B £300 for the distress caused by the poor handling of his complaint and the unfair eviction of Mr C.
• Review its contract to ensure it is in line with consumer law and guidance.
• Ensure that managers are given guidance and training on how to manage and record incidents.
58. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Final decision

59. I have completed my investigation. The Home has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

60. I have not investigated the actions of the GP as they are outside of the Ombudsman’s jurisdiction. The Parliamentary and Health Service Ombudsman investigates the actions of the NHS.

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Investigator's decision on behalf of the Ombudsman