Devon County Council (19 003 424)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 06 Dec 2019

The Ombudsman's final decision:

Summary: The Council has already admitted that there was fault when there was an incident involving Mrs D at the care home. The Ombudsman recommends that the Council apologises in writing to Mrs D and her daughter, identifies an alternative care home that Mrs D could move to and reminds the care home to complete the risk assessment relating to Mrs D.

The complaint

  1. Mrs C complains on behalf of her mother, Mrs D. She says Mrs D suffered a sexual assault at Highlands Care Home in Exeter last year. She also says the Care Quality Commission (CQC) has given the Home a poor rating at the last inspection.

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What I have investigated

  1. I have investigated Mrs C’s complaint about the incident. Paragraph 48 explains why I have not investigated the complaint about the poor CQC rating.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. 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 discussed the complaint with Mrs C. I have considered the documents that she and the Council have sent, the relevant law, guidance and both sides’ comments on the final decision.

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What I found

Law and guidance

Mental Capacity Act

  1. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
  2. Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

Safeguarding duty

  1. Section 42 of the Care Act 2014 says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

Fundamental standards

  1. 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.
  2. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
  3. The CQC has provided guidance on the regulations. This says that:
    • The care and treatment must be provided in a safe way for service users. (regulation 12).
    • Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).

What happened

  1. Mrs D is an elderly woman who suffers from dementia. She does not have the mental capacity to make decisions about her health, welfare, property or finance. Mrs C is Mrs D’s deputy for property and finance.
  2. Mrs D moved to the Home in 2014. She self-funds her care as she has assets which are over the threshold to be eligible for Council funded care. Mrs D’s contract to pay the fees is with the Council rather than with the Home itself and she pays the fees to the Council, not to the Home. This is an unusual arrangement, but it means that, as far as the Ombudsman is concerned, the Council remains responsible for the Home’s actions.
  3. The Council received a safeguarding referral from the Home on 1 November 2018. The Home said that earlier that morning, a man, Mr E, had been found in Mrs D’s bed. Both Mrs D and Mr E were undressed. The manager said there was no sign that any sexual activity had taken place. Mr E did not have mental capacity and it was believed that he went to the toilet during the night and then became confused and entered Mrs D’s room by mistake. A carer had stayed with Mrs D after the incident to ensure that she was not distressed.
  4. The Home had taken the following actions following the incident. It had:
    • Moved Mr E to a different room downstairs which only had access to one other room. It was trying to find a nursing home for him to move to.
    • Started to carry out 30-minute night checks on Mr E.
    • Placed 2 new pressure mats next to his bed.
    • Ensured Mr E only received care from male carers.
    • Contacted the families of the people involved.
    • Alerted the police and the CQC.
  5. The Council initiated a section 42 safeguarding investigation into the incident on the same day. The Council officer spoke to Mrs C to discuss the matter. Mrs C said the incident should not have happened she wanted the ‘culprit to be dealt with’.
  6. The safeguarding investigation noted the following about the incident:
    • After the incident, the Home found out that Mr E had displayed inappropriate sexualised behaviour towards women (carers and visitor) in the past. There was no suggestion that Mr E knew or understood what he was doing or that he planned these acts. These acts were solely linked to the decline in his mental health and cognitive ability.
    • Mr E had advanced dementia and would often leave his room during the night to use the toilet and then became disorientated.
    • The Home had put a pressure mat next to Mr E’s bed which should have alerted staff when Mr E left his bed. However, the alert had not gone off. It was not clear why this had happened. The officer noted that the pressure mat was small and did not cover the length of the bed. Also, the alert did not go off if a person stood on the edge of the mat.
    • Mr E was discovered during the staff’s nightly check of the rooms.
    • There was no way of determining whether any sexual contact took place.
    • There were no marks or bruises on Mrs D and nothing to suggest she had been physically harmed.
    • Neither Mrs D nor Mr E had shown any signs of distress.
    • Neither Mrs D nor Mr E had capacity to consent to sexual intercourse. They could not remember the incident.
  7. The Council held a safeguarding conference on 19 November 2018 which Mrs C attended.
  8. The safeguarding officer identified the following concerns where the Home needed to improve:
    • It was concerning that the sensor mat had not been activated when Mr E left his room. The Home acknowledged that there were more hardwearing mats available which they used at their sister care homes. The Council recommended the Home should review its equipment, particularly the sensor mats.
    • Sexual comments should be treated with greater veracity. The Council recommended that staff should have dementia training, particularly in managing difficult behaviour.
    • The client’s risk assessments needed to be more explicit. They should record behaviours and how they were managed and the risk assessments should be updated regularly.
    • The Home said it would benefit from higher staff ratios at night as there were currently 2 staff based on 26 rooms.
    • The recording of incidents needed to improve.
  9. Mrs C told the conference that she was happy, overall, with the care Mrs D received and she had no intention of moving her. She said she had visited Mrs D after the visit and she had shown no sign of distress.
  10. Mrs C said she was concerned another person would enter Mrs D’s room. The manager of the Home said she would complete a risk assessment for Mrs D and put in safeguarding strategies to protect her.
  11. Mrs C said she had requested an assessment of Mrs D’s care and support needs, but had not had a response yet. The Council said that, as Mrs D was a self-funder, it would not normally become involved. However, the social worker agreed to carry out a review of Mrs D’s care and support needs.
  12. The police said it would not take the matter further because of Mr E’s lack of mental capacity.
  13. The Chair said the Home had taken measures to manage the risk for Mrs D and Mr E after the incident.
  14. The recommendations of the safeguarding investigation were that the Home:
    • Had to implement a robust way of recording incidents.
    • Must ensure it had adequate staff to care for the residents.
    • Should review its equipment and ensure it met the residents’ needs, especially their sensor mats.
    • Would consider booking staff on dementia training and other training on managing challenging behaviours.
    • Should complete risk assessments for residents who needed it.
  15. The Council said its Quality Assurance Team would visit the Home.
  16. The Council held another safeguarding meeting on 17 December 2018 and reviewed the recommendations that were made at the previous conference. It said the recommendations had been completed. The Home said it was in the process of carrying out a risk assessment of Mrs D.
  17. The social worker said he had carried out a needs assessment of Mrs D, but had not recommended any changes to her care package. The needs assessment dated November 2018 said Mrs C had made it clear that she wanted Mrs D to remain at the Home.
  18. I asked the Council to provide me with any risk assessments relating to Mr E or Mrs D. The Council said there were no separate documents but the risk assessments were carried out as part of the safeguarding process.

Analysis

  1. Mr E had dementia and staff knew that he sometimes would leave his room and get lost.
  2. I agree with the Council that there was fault as the Home should have carried out a risk assessment relating to Mr E.
  3. I also agree with the safeguarding investigation that the equipment (the pressure mat) failed to work and this, alongside the low staff numbers contributed to the incident going unnoticed.
  4. I do note that, once the incident happened, the Home acted appropriately by alerting the families, the Council, the police and the CQC. It carried out an immediate risk assessment and took appropriate measures to reduce the risk by moving Mr E to a different room, increasing checks on him and putting better pressure mats around his room. Mr E then eventually moved to another care home.
  5. The Council also took the correct action by starting a safeguarding enquiry. I note the Council has made a number of service improvement recommendations as part of the safeguarding investigation and these are the appropriate to ensure any future risk is reduced. The Council’s Quality Assurance Team has also become involved as a result of the safeguarding investigation.
  6. However, the Council has not sent me the risk assessment that the Home was meant to have carried out in relation to Mrs D so I presume this remains outstanding.
  7. I have considered the injustice and any remedy for Mrs D. Unfortunately, because of Mrs D’s cognitive decline and lack of mental capacity, it is impossible to say what impact or injustice the incident has had on her. I do note that the staff and Mrs C have said that Mrs D has never shown any distress relating to the incident.
  8. Mrs C says the incident should not have happened and she wants to understand why it happened. She also feels confused about the process as she did not receive a response to her complaint to the Council as the matter was dealt with as a safeguarding issue.
  9. I hope that this investigation has given Mrs C some more clarity on what happened and what the identified fault was. The Council offered to respond formally to Mrs C’s complaint at the outset of my investigation. I am of the view an apology and an acknowledgment of fault would be an appropriate remedy for the injustice Mrs D and Mrs C have suffered.
  10. Mrs C also said that she wanted to move Mrs D to a different care home, but was waiting for the Council’s consent and assistance to do so. Mrs D is a self-funder so there is no need for Mrs C to obtain the Council’s consent to any move. However, I appreciate that Mrs C may need some help in identifying a suitable home for Mrs D to move to and the Council has agreed to offer assistance if Mrs C wants.
  11. Mrs C also wanted compensation for any injury Mrs D suffered because of the incident. I have explained to Mrs C that this would be an issue (personal injury) that could only be decided by a court and was outside of the Ombudsman’s remit.

Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Home, I have made recommendations to the Council.
  2. As the Council has already made recommendations for service improvements to the Home as part of its safeguarding investigation, I will not make any further recommendations.
  3. I will share this decision with the Care Quality Commission (CQC), under our information sharing agreement. The CQC is best placed in addressing any outstanding issues about the Home’s overall performance.
  4. The Council has agreed to take the following actions within one month of the final decision. It will:
    • Acknowledge the fault and apologise to Mrs D and Mrs C.
    • Assist Mrs C in identifying a suitable care home which Mrs D could move to.
    • Remind the Home to complete Mrs D’s risk assessment and check that it has been completed.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs C’s complaint that the Home has had a poor CQC review. If Mrs C wishes to make a complaint to the Home about any aspect of Mrs C’s care, then she should address this complaint to the Home in the first instance.

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Investigator's decision on behalf of the Ombudsman

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