Summary: Mrs X complained for her mother, Mrs Y, about care and recording keeping at St Mary’s Nursing Home. She also complained about a safeguarding referral. There was no fault.

The complaint

1. Mrs X complained on behalf of her mother, Mrs Y, about care received at St Mary’s Nursing Home (the care provider) in the days before her death and about poor record keeping. She also said staff made a malicious safeguarding complaint about her.
2. Mrs X said this was distressing and ruined the final days with her mother.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)

6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant’s representative, as well as the information we discussed in a telephone conversation.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014
• The Care and Support Statutory Guidance (Updated 26 October 2018)
• The Care Homes Regulations 2001
• The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
• The Care Provider’s Safeguarding Policy
8. I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment.

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What I found

9. The Council commissioned Mrs Y’s placement at the care provider. The actions of the care provider are therefore considered to be actions taken on behalf of the Council in meeting its duty to provide social care in line with Mrs Y’s assessed eligible care needs.
10. The Care Quality Commission (CQC) has published guidance on meeting the fundamental standards expected of care providers. Care and treatment must reflect the needs and preferences of residents, who must be treated with dignity and respect. Care providers must meet residents nutritional and hygienic needs and protect them from abuse. We consider this guidance when deciding complaints about poor standards of care.
11. Care providers must securely keep accurate, complete and detailed records for each resident. This includes a record of care and treatment provided. The care provider must always keep records for three years from the last entry and ensure they are available for inspection.
12. Care staff who see a resident in danger must intervene or ask for help. Where suspected abuse is reported to a manager, they must take action to provide support or protection. The manager should discuss the issue with the resident. If the resident does not want further action to be taken, the manager should consider whether to override the resident’s wishes by making a referral to the local Safeguarding Adults Authority. The manager will consider the public interest or the need to prevent further harm.
13. The 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 the person cannot protect themselves.
14. When the CQC reported on the care provider in August 2019 it found issues with administration practices, documentation and record keeping.
15. The Council carried out an audit of the care provider in November 2018. It found daily notes lacked detail and were impersonal. The notes generally only covered medication given, safety checks and mobility help. It found a lack of reference to quality of day, enjoyment of activities, mood or progress made.
16. The Council produced an action plan for improvements. It wanted to see evidence of how staff received residents each day, what help they needed, fluid intake, involvement in activities, enjoyment of the day and mood, safety checks and a record of visitors. Monthly weight loss also needed to be recorded and any discussions with relatives needed to be documented, along with their involvement in creating personalised plans. It said residents should be involved in creating an activities schedule.
17. Since then there have been monthly visits and the home was due for a review in November 2019.

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What happened

18. Mrs Y went into hospital in 2018. She was discharged into St Mary’s nursing home on 27 April 2018 to receive end of life care.
19. Mrs Y had a review of her care and support plan on 30 July 2018. The plan details Mrs Y’s type 2 diabetes, hypertension, heart condition and chronic obstructive pulmonary disease (COPD). She had a pacemaker fitted and needed medication and a nebuliser. She wanted to stay at St Mary’s because she was happy and settled. The care provider was to help with breakfast and a hot meal. It should leave drinks and help with washing and showering each day at Mrs Y’s request. It should also supervise with medication.
20. Mrs Y’s social worker visited on 30 October 2018. She recorded Mrs X was present and had concerns care provider staff were not feeding Mrs Y, who had lost weight. The social worker spoke to the manager, who agreed Mrs Y would be fed all her meals, given snacks and ‘build up’ drinks to manage her weight.
21. Mrs X contacted the Council on 8 November 2018 to raise concerns about the following aspects of Mrs Y’s care:
• her teeth were not brushed;
• she was not showered;
• her glasses were not cleaned;
• she was not shaved;
• she had an unexplained bruise;
• she had broken skin on her leg;
• the cups were not clean;
• the food was cold and inedible;
• her ‘build up’ drinks were not given;
• she had lost weight;
• she was dehydrated;
• she had an undiagnosed urinary tract infection until Mrs X asked for a blood sample and;
• she received no stimulation.
22. Mrs X also said deputy manager of the care provider was defensive, then rude to her, when she tried to discuss her concerns.
23. The Council asked the care provider to investigate and feedback. The deputy manager of the care provider replied. He said Mrs X’s actions towards him felt aggressive and he was defensive in response. Mrs X denies her actions were aggressive and told me a family member of another resident defended her because of the way the deputy manager acted.
24. Mrs X contacted the Council by telephone on 9 November 2018. She asked if Mrs Y could move to another care home. The Council said it would ask another home to do a review. It looked into this and advised Mrs X a continuing healthcare (CHC) review would be needed first.
25. Mrs X contacted the Council again in November and December 2018. She remained unhappy with Mrs Y’s care and said she was left in her bedroom and not encouraged to eat. She had not raised the issues sooner because she was waiting for her mother to move to another care provider. She said the care provider had made a safeguarding referral about her in retaliation to the complaints she has made about the standard of care.
26. The care provider made a safeguarding referral about Mrs X on 4 December 2018. It said she swore at Mrs Y, lifted her without support, and was taking away Mrs Y’s choices.
27. Mrs X told me she visited Mrs Y after 4pm and found her in bed in the dark. She asked Mrs Y why she was in bed and Mrs Y did not know. She asked Mrs X to take her for a cigarette. Mrs X denied swearing. She said there were no staff around and no one could have heard their conversation. Mrs X went to find a member of staff and asked them to dress Mrs Y. She said staff did not ask Mrs Y if she wanted to get up and they did not dress her, they just put clothes over her pyjamas. Mrs X said if staff had safeguarding concerns, they should have informed her immediately and stopped her taking Mrs Y out.
28. Mrs Y’s social worker spoke to Mrs X on 5 December 2018 and said the care provider had raised a concern about how she treated Mrs Y. The social worker arranged to meet Mrs X on 27 December 2018.
29. Mrs X sent an email to the Council and care provider on 18 December 2018. She complained about the condition of the nebuliser equipment and said Mrs Y had not eaten or drank anything. Staff were unaware she needed help. Mrs X told me she also complained about the poor condition of the nebuliser equipment on 16 October.
30. The manager of the care provider told the Council it agreed this was unacceptable but also raised issues with Mrs X. The manager said she made a safeguarding referral about Mrs X swearing at Mrs Y, causing distress and transferring her wrongly despite warnings it was dangerous. She also advised the Council of problems with Mrs X raising issues with the care provider but not listening to feedback from staff or engaging with them.
31. Mrs X told me she was not warned about transferring Mrs Y. She said staff saw she was competent in transferring Mrs Y and regularly took her to the dining room and assisted her out of her chair. She said the care provider only raised this as a safeguarding concern after she had complained about Mrs Y’s care.
32. The Council suggested a meeting between itself, Mrs X and the care provider.
33. The manager of the care provider contacted Mrs X to apologise and said she would remind staff of Mrs Y’s needs, plus put her on 30-minute observations. She confirmed new nebuliser masks and tubing was ordered.
34. A CHC review took place on 21 December 2018. Mrs Y was acutely unwell with chest congestion. The assessor recorded Mrs Y received nebuliser steroids and physiotherapy. She was not eating or drinking, she was dehydrated, weak, lethargic and fatigued. The assessor decided Mrs Y’s condition needed to be managed before any further steps about a move could take place.
35. Mrs Y’s social worker met with Mrs X and Mrs Y’s son on 27 December 2018 to discuss the safeguarding referral made by the care provider. Mrs X denied speaking to Mrs Y in the manner suggested and she thought the referral was malicious. The social worker decided there was no risk of harm to Mrs Y and did not take the safeguarding referral further.
36. Mrs X met with Mrs Y’s social worker and the deputy manager of the care provider on 4 January 2019 to discuss issues about the safeguarding referral.
37. A doctor visited Mrs Y on 7 January 2019 as she was struggling with her breathing. They prescribed antibiotics and steroids and put a statement of intent in place for the end of life pathway if Mrs Y was not responsive.
38. Mrs X spoke with care provider staff on 9 January 2019 and visited Mrs Y. She was struggling with breathing and was not responding to antibiotics. Mrs X asked for an ambulance. Mrs Y went to hospital where she later passed away.
39. Mrs X told me she telephoned the home on the morning of 9 January 2019 and was told by staff Mrs Y was having breathing difficulty, which was treated with steroids. Mrs X says the care provider failed to relate the seriousness of Mrs Y’s condition. When Mrs X visited Mrs Y, she could not believe the condition she was in. Mrs X said staff asked her what they should do, and she told them to call an ambulance because the steroids would not help. Mrs X said it was untrue the care provider had telephoned her that morning to say how Mrs Y was doing.
40. Mrs X contacted the Council on 25 January 2019 to complain about care on the day Mrs Y went to hospital.
41. The Council responded in February 2019. It said it had spoken with care provider staff and reviewed Mrs Y’s care notes. It decided care provider staff looked after Mrs Y as best they could in a difficult situation and couldn’t be expected to know the signs of pneumonia given Mrs Y’s severe COPD. The Council said staff acted quickly to changes in symptoms and sought doctor’s visits. Respiratory nurses visited regularly, and staff said they supported Mrs Y’s wishes by letting her stay in bed. Mrs Y’s complaint was not upheld.
42. Mrs X told me staff members, as qualified nurses, should have seen the difference between Mrs Y’s symptoms and an episode of COPD, particularly as Mrs Y had been in their care for nine months.
43. Mrs X took her complaint to stage two of the complaint’s procedure. She said the safeguarding referral was malicious by a member of staff who she says had since been subject to disciplinary action because of her conduct towards residents and other staff. She said her previous complaints about care were not looked into. She also complained about the way the deputy manager spoke to her.
44. The Council responded in March 2019. It partially upheld Mrs X’s complaint as there was no evidence the deputy manager responded to her complaints and he should not have spoken to her in the way he did. The Council did not uphold Mrs X’s complaint about care and the safeguarding referral. It said Mrs Y’s care records supported what staff said about her care and the care provider acted correctly about the safeguarding referral. It would not comment on disciplinary matters.
45. Mrs X was unhappy with the Council’s investigation. She brought her complaint to the Ombudsman because she wanted the care provider to admit its failings and that the safeguarding referral was malicious.

Response to enquiries

46. The Council told me the safeguarding referral happened because of concerns for Mrs Y and was in no way personal or malicious. The care home manager who sent the referral had not met Mrs X at that point. It considered the safeguarding referral was the result of a misunderstanding.
47. The Council said it found no evidence of neglect or harm by the care provider when it examined the complaint. It said it was clear there was a lack of communication and breakdown in relations between Mrs X and the deputy manager.
48. The Council provided me with all records it held for Mrs Y. It also provided records from the care provider, which included records about Mrs Y’s daily care.

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Care Records

Initial assessment

49. Mrs Y was assessed on entering the care provider on 25 April 2018. The assessment highlighted the following:
• Mrs Y should be encouraged to take part in social activities;
• She requires assistance from two nurses with a slide sheet to alter her position;
• She appeared malnourished and was prescribed ensure supplements;
• She was at risk of recurrent infections so oral fluid intake should be encouraged;
• She requires assistance to wash and dress but should be encouraged to express her thoughts and wishes regarding clothing. In view of poor oral intake regular mouth care should be offered;
• She requires full assistance with eating and drinking and requires encouragement. Oral intake is poor. Food and fluid charts must be in place.

Daily care

50. Mrs Y’s care daily records are too numerous to state in full, but I have included some of the important entries to consider what happened surrounding the safeguarding referral made on 4 December 2018, and in the days prior to Mrs Y’s hospitalisation on 9 January 2019.
51. 3 December 2018:

“Mrs Y was received in bed, medication given as prescribed. Diet and fluids… repositioned changes for pressure relief. Checks and safety ensured. Mrs Y appears to be asleep at the time of writing. (04:15). Mrs Y has had a bowel movement overnight. Pad changed.

Mrs Y was assisted with all personal hygiene needs by care staff. Due medications administered as prescribed meals and fluids taken well. Transfer with zimmer frame and assistance of 1 staff. Toileting needs maintained…. (16:02)

Mrs Y’s daughter put Mrs Y back to bed tonight after telling us to get her mum out off (sic) bed so she could take her out. Mrs Y did not want to get out of bed but she had too (sic) (18:40).”

52. 4 December 2018:

“Mrs Y appears settled had supper due medications as prescribed all care needs met by staff pressure relief and safety maintained slept well for long period no new concern (05:05).

Mrs Y was assisted with washing and dressing. Diet and fluids taken well. Meds taken well. Visited by daughter twice today. Home manager has put a safeguard on Mrs Y due to her daughter taking away her mums choices and for moving and handling by daughter. Safety ensured. (20:12).”

53. 31 December 2018:

“Mrs Y was seen by Dr today who advised to continue encouraging her to eat and drink and then document the amount taken to monitor if she is eating and drinking enough. (19:40).”

54. 3 January 2019:

“Phone consultation with Dr regarding Mrs Y’s condition. Advised to continue monitoring diet and fluids intake and if she felt chesty to contact ARAS team first.”

55. 5 January 2019:

“Contacted out of hours GP via 111 call to review Mrs Y. Sounds chesty, not eating, refusing medication and drinking very little, weak and observation BP 88/62, SAT 97%, P62, T37C. Awaiting GP response.”

56. 6 January 2019:

“Mrs Y appeared poorly and looks very tired and sleepy visited by GP…. Had medication with no vomiting. 100 m/s given taken well care needs met by staff pressure relief and safety maintained. Slept most of the night nebuliser and inhalers given….(0545).

Mrs Y appeared settled and a bit brighter today managing to eat and drink in small amounts. Visited by daughter. On steroids for seven days. Diet and fluid chart maintained. Safety ensured, no change (1536).”

57. 7 January 2019:

“Seen and examined by Dr and prescribed…. 250 mg and increased her steroids to 8 tablets once a day for 7 days. Statement of intent is in place.

Mrs Y appears settled in bed on my arrival due prescribed medication administered had fluid intake. Did not eat anything during night had supplement drinks all care needs met by staff Pressure relief and safety maintained. Mrs Y complains of breathlessness @ 2.45am appeared very restless v/s checked BP 156/104 RR 59 O2 Sa 97% - 96% Temp 37.9C Nebuliser, paracetamol given after 1-2 hours settled down and sleeping time of writing had fluid intake. (0540).

Mrs Y appeared settled and brighter had good fluid intake due prescribed medication administered all care needs met by staff pressure relief and safety maintained…needs met slept most of the night night. Encourage fluid…..(05.50)

Still sleeping appeared settled BP86/57 RR by O2 Sa 92% T 37.2C handover to day nurse. Please continue observe. (0710).

changes maintained. Spoke with ARAS team which they advised that they will wait until the GP visit. A/w GP visit at time of writing. (1605)

Mrs Y was assisted with all personal hygiene needs by car staff. Refused to take some of her regular medications. Regular nebulisers maintained. Very poor diet intake, encouraged to drink plenty of fluids, see chart. Obs T37, HR 81, RR 22, BP 120/59, Sats 95%...continued needs met during the day. Nursed in bed on airflow matters…(1615).

Mrs Y was nursed in bed, very tired today. Observation was taken in the morning all was within normal range; around 11:30 ARAS team came to see Mrs Y and observed to have a temperature of 38.1C paracetamol given ARAS advised bubble peb that can be done to help loosen phlegm a diagram is left in her room. Last observation was temp 36.5C, 97%, pulse – 83. BP 97/70. Sleeping at time of writing. (1930).”

58. 8 January 2019:

“ARAS team – visit by Dr noted Mrs Y’s stats. Feeling better today V tired and not able to have long consultation with her. Discussed bubble pep with nurse. This was never handed over following visit from ARAS physio 20/12/18…physio to revisit this afternoon and go through again. Nurse visit again tomorrow.”

59. 9 January 2019:

“Mrs Y appeared bit brighter and settled had supper due prescribed medication given all care needs met by staff continued on antibiotics for chest infection. Coughing at times had good fluid intake. No episodes of vomiting slept up to 3am rest of the night stable had good fluid intake. (6.30).

Mrs Y was very distressed and breathless this morning. Inhalers, nebulisers, antibiotics and steroids but did not respond. Daughter wondered if we could try other treatment and 999 call was made to send Mrs Y to hospital Paramedics and Mrs X took Mrs Y to North Manchester General Hospital for further assessment and management. (1505).”

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Analysis

60. Mrs X raised issues with the standard of care, hygiene and nutrition. This related to Mrs Y not being given a shower, not being encouraged to eat or drink and being left alone or forgotten. The care provider apologised to Mrs X and said it would remind staff.
61. Staff said they asked Mrs Y if she wanted a shower and she declined, and they were respecting her choices. The records I have seen do not explicitly confirm this, but they do show Mrs Y was washed regularly. Mrs Y’s care plan does not say she had to have a shower, but one should be offered. The records could be clearer about the conversations staff had with Mrs Y about her choices, but I fall short of finding fault.
62. Mrs Y’s care records do show when she refused meals or had poor appetite. The records also show staff have encouraged Mrs Y to drink and gave supplements. This is reflected in Mrs Y’s weight charts, which show she lost weight but then put weight back on again.
63. Mrs X said Mrs Y was left alone and forgotten. Staff said this was at Mrs Y’s request. It is recorded in care notes that Mrs Y wanted to be left behind after meals to look out of the window. Mrs X said Mrs Y never said this and she had checked with other residents. She said Mrs Y was forgotten. On balance, I find what is recorded in the care notes to be more persuasive. On the evidence seen I cannot fault the actions of staff.
64. General care is not an aspect which Mrs X asked me to investigate. Her main concerns were with record keeping, the care received on the day Mrs Y went into hospital, and with the safeguarding referral.
65. On the evidence seen, the records are thorough. They cover Mrs Y’s needs, condition and what action has been taken. Mrs X thinks records have been falsified after the event but there is no evidence to support this. On the records I have seen, the care provider was not at fault. The care provider met Mrs Y’s care needs as far as it could. There have been issues with getting Mrs Y to eat and drink, but none that would lead me to finding fault. Staff recorded when Mrs Y declined meals or drank little and they sought medical advice where necessary.
66. On the evidence seen, there was no fault with the care given on the day Mrs Y went into hospital. Whether Mrs X telephoned the home, or the home telephoned Mrs X, about Mrs Y’s condition this did not affect the outcome. Mrs X thinks care staff should have known Mrs Y’s symptoms were not COPD. The records confirm staff were seeking medical advice about Mrs Y’s symptoms and were administering the medication prescribed by the doctor. There is nothing to suggest the level of care, or an omission from care staff, contributed to Mrs Y’s death.
67. A carer wrote a statement to the manager with concerns about the way Mrs X spoke to Mrs Y and the way she acted. She thought Mrs X was taking away Mrs Y’s choices. The care notes state Mrs X made staff get Mrs Y out of bed against her wishes. Mrs X says Mrs Y wanted to go for a cigarette. I cannot determine this; it is the written record of staff against Mrs X’s word.
68. The safeguarding referral raised concerns with the way Mrs X moved or transferred Mrs Y. Mrs Y’s care plan states she requires two staff to move and transfer her. Mrs X said the care provider never told her not to move or transfer Mrs Y and she regularly took her to the dining room or out to smoke. The records are silent in this regard. On balance I therefore find the care provider cannot evidence it told Mrs X not to move or transfer Mrs Y.
69. Only the person who wrote the statement can know if it was malicious. Mrs X said other staff told her the carer who wrote the statement was disciplined because of her attitude towards residents and staff. This is not evidence I can comment on and the Ombudsman has no role in internal disciplinary matters.
70. Regardless of whether the statement was malicious, the carer followed the correct procedure by informing the manager of her concerns. Once in the hands of the manager, they had a duty to investigate. The manager considered it right to make a safeguarding referral to the Council and I cannot fault this decision.
71. The Council then had a duty to start a safeguarding investigation. To do so was not at fault. The social worker assigned the referral spoke to Mrs X and her family and decided there was no need to take the matter further. This was understandably distressing for Mrs X, but the Council had a duty to act. That was not fault.

Final decision

72. I have completed my investigation. There was no fault in the care or record keeping in the days leading to Mrs Y’s being hospitalised. There was no fault in the safeguarding referral.

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Investigator's decision on behalf of the Ombudsman