Summary: Ms X complains about the care provided to Mr Y and says this negatively affected the last weeks of his life. The Ombudsman finds the Care Provider caused Mr Y and his family injustice and recommended it reimburse 20% of his care fees. It has agreed to do this and has already apologised and taken action to prevent similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains about the care provided to her late father, Mr Y when he was at Steepleton Manor Care Home. She says Altogether Care LLP (the Care Provider):
• Gave him a different room than that agreed and the TV was broken.
• Did not complete a fast track continuing healthcare assessment.
• Failed to give Mr Y morphine for three hours after family collected it from the surgery so he could have it quickly.
• Did not provide suitable food or drink.
• Left family to discuss Mr Y’s health with the GP in the busy corridor.
• made inappropriate comments.
• Did not address his changing needs.
• Provided an unsuitable mattress and he was sat on the bar of the bed for the last three weeks of his life.
• Did not keep the room clean.
• Did not call a GP when needed.
• Failed to recognise the severe pain he experienced and did not notice he was dying.
2. Ms X says this meant the family were not able to deal with Mr Y’s last days in the way they would have liked.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
4. If we are satisfied with a care provider’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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). In this case, Ms X is Mr Y’s daughter and we consider her a suitable person to bring this complaint on his behalf.

6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

9. Continuing healthcare (CHC) is a package of care arranged and funded solely by the health service for people who are not in hospital and have complex ongoing health needs.
10. Funded nursing care (FNC) is care provided by a registered nurse to people who live in a care home. The NHS pays a contribution for this care directly to the care home. Eligibility for FNC is decided by an assessment.

The Care Quality Commission

11. 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.
12. Regulation 9 is about personalised care. The CQC’s guidance on the regulations says:
• “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be”.
• “Where food and/or drink are provided for people who use services, they must have a choice that meets their needs and preferences as far as is reasonably practical”.
13. Regulation 12 is about safe care and treatment. The guidance says:
• “Medicines must be administered accurately, in accordance with any prescriber instructions and at suitable times”.
• “Providers must make sure that equipment is suitable for its purpose, properly maintained and used correctly and safely”.
• “Sufficient equipment and/or medical devices that are necessary to meet people’s needs should be available at all times and devices should be kept in full working order”.
14. Regulation 14 is about meeting nutritional and hydration needs. The guidance says:
• “People’s food must be placed within their reach and presented in a way that is easy to eat, such as liquidised or finger foods where appropriate”.
• “Where a person is assessed as needing a specific diet, this must be provided in line with that assessment”.
• “Staff must follow the most up-to-date nutrition and hydration assessment for each person and take appropriate action if people are not eating and drinking in line with their assessed needs”.
15. The CQC inspected Steepleton Manor Care Home on 19-20 February 2018 and rated it Good in all areas.

What happened

16. Mr Y had various health conditions that caused him difficulties many aspects of daily life including mobility, eating and drinking and cognition. He also had a long history of severe anxiety and other mental health difficulties and was distressed to be away from home and his wife.
17. Following a sudden increase in falls at home and some time in hospital, Mr Y had difficulty sleeping as he became severely distressed at night. In August 2018, the family decided he should move into Steepleton Manor Care Home; it was near his home and they had known people who had used it in the past. Mr Y had pneumonia when he arrived and was beginning to have problems swallowing and speaking. The Care Provider said that when Mr Y arrived, he was nearing the end of life and for palliative care. The GP had noted he was nearing end of life in June 2018, but Ms X says the family were unaware of this.
18. When family viewed the room at the care home, they saw two rooms and turned one down. The room they chose was being deep cleaned and had a small patio area. When Mr Y moved in, he was put in the other room. The TV didn’t work and the furniture and carpet were in need of replacement. It had not been deep cleaned and Ms X says the room was only vacuumed once during his three week stay; 20 minutes before he died. Ms X says they could not cause more disruption to Mr Y so he moved in as planned despite the room not being what they wanted.
19. Before Mr Y moved into the home at the end of August, Ms X asked about CHC funding. When Ms X received an invoice for more than the £950 per week quoted, she says the manager told her not to worry, it would be refunded. Ms X understood this was because he had applied for CHC funding. Two weeks later, Ms X contacted the local clinical commissioning group (CCG) who advised it had no application for CHC, only an application for FNC. She raised this with the Care Provider and a nurse agreed to complete the assessment however, this was not done again. Ms X has since made a retrospective application for CHC.
20. Mr Y was nursed in bed and needed to be elevated because of the pneumonia. Ms X asked for him to be sat out in the chair as bed was uncomfortable for him because of longstanding problems with his back. The Care Provider said sitting out would have caused discomfort and exhaustion when his breathing was compromised, as would hoisting. Sitting was also more likely to cause exhaustion, pressure ulcers and blood clots. Mr Y was distressed and kept getting his legs out over the side of the bed. He was at risk of falling so staff placed a foam mattress beside the bed because the crash mat was being used for someone else. The pump for the mattress was faulty but this was only noticed when Mr Y was sat out in his chair and someone sat on the bed to write notes. They found they were sitting on the metal bar so arranged for the pump to be replaced. This was about one week after he arrived. Ms X asked for the mattress to be changed as the pressure relief mattress was unsuitable when Mr Y was sitting up. However, the Care Provider says the mattress used was suitable for use in any position
21. Ms X says Mr Y was in great pain and for the last two weeks drew his legs up under him. The Care Provider said he had contractures but Ms X says his legs were in the normal position when he sat in the chair and in any case contractures should be prevented with good care. Ms X asked for stronger medication for the pain and the Care Provider consulted the GP. The staff member dealing with Ms X’s request made a flippant remark; the Care Provider has since apologised and recognised this as unprofessional.
22. The Care Provider notes four occasions during Mr Y’s three week stay when staff were in contact with the GP. On 4 September, Ms X insisted on the GP visiting Mr Y as previously the GP had dealt with the Care Provider by phone. When the GP wanted to speak with the family about whether to continue Mr Y’s treatment, they asked for a quiet area to speak but were left to discuss this in a busy corridor.
23. When the GP prescribed morphine, family went to collect the prescription and the syringe driver so Mr Y could have this quickly. However, it took the Care Provider over three hours to put a syringe driver in place and give him the morphine. The Care Provider apologised and said it should have been put in place immediately.
24. Ms X also complained about the food the Care Provider gave to Mr Y which was too dry and thick for him to swallow. They asked for moisture to be added but were told the meals don’t come with gravy. Mrs Y took in home made soup which he ate and on one occasion a worker added some of Mr Y’s soup to his meal to moisten it. The Care Provider said it outsources its meals for texture modified diets and staff should not modify the consistency. This is because a speech and language therapist (SALT) decides the correct texture. Ms X says the Care Provider also regularly gave Mr Y yoghurt which was a good consistency for him, so it does not make sense that a softer, moister texture was not suitable for his meals. Ms X also asked for nutritional supplements but these are by prescription only and Mr Y was not prescribed these.
25. Ms X also said he was not offered a choice of drinks other than tea or water until they asked for juice. The Care Provider said staff offered a variety of drinks but accepted there should have been a fluid chart to evidence this.
26. The Care Provider formally responded to Ms X’s complaint on 13 March 2019. The response set out the investigation details clearly and accepted the following with apologies:
• The room was not the room chosen and did need refurbishment; this should have been discussed with the family. The TV should have been checked before admission and put right immediately. The domestic team did not vacuum because they felt they would disturb Mr Y; they should have discussed this with the family.
• The manager should have completed the CHC fast track assessment as soon as Mr Y’s health began deteriorating. It was evident that he completed neither a checklist assessment nor a fast track assessment.
• The foam mattress should not have been used by the bed and staff should have obtained a crash mat from a sister home or bought one. This could have been done within one day.
• Comments made by a member of staff were inappropriate and unacceptable; she has been reprimanded.
• The syringe driver should have been put in place immediately once it arrived. The nurse on duty was reprimanded and disciplined. Mr Y’s pain could have been better managed.
• The manager should have taken the family to a quiet area to discuss Mr Y’s treatment with the GP.
27. The Care Provider also noted learning points and advised it had taken these up with the relevant staff.

Did the care provider’s actions cause injustice?

28. The Care Provider caused Mr Y injustice in providing a room, which family had rejected previously and needed refurbishment, unlike the room they chose. It should have advised the family in advance so they could reconsider without risk to Mr Y. It also caused injustice in not keeping the room clean, or at least offering this. It has already apologised for this which has gone some way to remedying the injustice, but this is not enough.
29. Ms X has since completed a retrospective CHC application. This means any injustice arising from the Care Provider’s failure to complete this will be remedied apart from some time, trouble and frustration for Ms X.
30. The Care Provider accepts it should have given Mr Y the morphine more quickly. It is likely the delay caused Mr Y significant, avoidable pain and discomfort for around three hours.
31. While I accept that the food was not unsuitable, the texture was an issue. Whether the texture of the food was according to his care plan, or not, the Care Provider should have taken professional advice if Mr Y was not eating. On the balance of probability, this was not solely to do with Mr Y being at end of life, as he successfully ate soup and yoghurt on occasions. The Care Provider should have a record of any consultation and care plans updated with the advice received. Trying to eat food which was too dry is likely to have caused Mr Y further discomfort.
32. The Care Provider should have found a quiet space for family to speak with the GP. It has apologised for this and the inappropriate comments made by a member of staff and I consider there is no outstanding injustice here.
33. The Care Provider used an appropriate mattress for Mr Y, but we cannot now decide whether it was working adequately. Although the pump was replaced immediately when it was found not to be working, we cannot now check whether the mattress was inflating properly. Ms X is clear it was not working properly but the Care Provider says it was.
34. I do not consider the Care Provider failed to address Mr Y’s changing needs or that it did not call a GP when needed. The GP came at Ms X’s insistence, but I cannot say the Care Provider should have done this. I also found the Care Provider knew from the outset that Mr Y was dying and that he was in pain. However, the Care Provider says it could have managed his pain better and therefore this probably caused Mr Y further avoidable pain and discomfort.
35. The injustice to Mr Y cannot all be remedied because he has since died. However, in not providing the level of service he had the right to expect, it caused him a financial injustice. I therefore recommended reimbursement of some of the fees.
36. The Care Provider completed an open and helpful investigation which recognised some significant faults and identified learning points. It has already apologised and taken appropriate action to avoid similar problems occurring in future, so I have not made recommendations for service improvements.
37. However, as there is evidence here to suggest a potential breach of regulations 9 and 12, I will provide a copy of the final decision to the CQC.

Agreed action

38. To remedy the injustice identified above, I recommended the Care Provider refund 20% of the total cost of Mr Y’s stay to his estate.
39. The Care Provider has agreed to do this and provide evidence to the Ombudsman within one month of the final decision.

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Final decision

40. I have completed my investigation and uphold Ms X’s complaints that the Care Provider:
• Gave him a different room than that agreed and the TV was broken.
• Did not complete a fast track continuing healthcare assessment.
• Failed to give Mr Y morphine for three hours after family collected it from the surgery so he could have it quickly.
• Did not provide suitable food or drink.
• Left family to discuss Mr Y’s health with the GP in the busy corridor.
• made inappropriate comments.
41. I do not uphold Ms X’s complaints that the Care Provider:
• Did not address his changing needs.
• Provided an unsuitable mattress and he was sat on the bar of the bed for the last three weeks of his life.
• Did not keep the room clean.
• Did not call a GP when needed.
• Failed to recognise the severe pain he experienced and did not notice he was dying.
42. The Care Provider will complete the agreed action and I am satisfied this will remedy the injustice as far as possible.

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Investigator's decision on behalf of the Ombudsman