Summary: There was fault in the Care Provider’s assessment of Ms D’s needs because it failed to consult with her attorney or seek relevant information from the NHS. There was also a failure to send relevant information about fees or a copy of the contract to the attorney. This caused Mrs C avoidable frustration and confusion. The Care Provider will apologise and take other action described in this statement to prevent recurrence in other cases.

The complaint

1. Mrs C complains for Ms D about BUPA Care Homes (CFC Homes) Ltd (the Care Provider). She says:
1. There was a failure to complete a full assessment of Ms D’s care needs which meant the Care Provider did not have the full picture about her history of challenging behaviour
2. The Care Provider evicted Ms D for behaviour it should have been aware of had it carried out a full assessment
3. The Care Provider charged too much for the care received and did not provide the one to one support it said Ms D needed.
2. Mrs C would like the Care Provider to refund part of the fee.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. 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)

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How I considered this complaint

6. I considered:
• The Care Provider’s response to the complaint
• Documents from Mrs C and from the Care Provider described later
• Comments from the parties on a draft of this statement.
7. I discussed the complaint with Mrs C.

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What I found

Relevant law and guidance

8. Regulation 19 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires a care provider to give accurate and timely information about the cost of their care and treatment to people who are paying in full or in part for the cost of their care. Guidance explains providers must ensure they give a copy of a written contract detailing the service to be provided to the person or their representative. People must receive information about the cost, terms and conditions of the service, prior to commencement, if practicable.
9. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
10. Regulation 12 of the 2014 Regulations says care must be provided in a safe way including:
• assessing risks to the safety of people using the service and doing all that is reasonably practicable to mitigate risks.
• working with health professionals to ensure the health and welfare of residents.

Background

11. Mrs C is Ms D’s friend and has a joint power of attorney for health and welfare and finances for Ms D. She shares the power of attorney with two of Ms D’s relatives. Ms D was a self-funder.
12. Ms D stayed in Heathbrook House, one of the Care Provider’s nursing homes (the Nursing Home) from 11 March to 6 April 2019. Before moving in to the Nursing Home, Ms D had been in an NHS mental health hospital for six months. Ms D had a care co-ordinator from her local NHS mental health team who oversaw her care in the community.

The Care Provider’s documents

13. A resident enquiry form completed on 28 February during a phone call with Ms X (Ms D’s relative, who does not have power of attorney) said Ms D had dementia, wandered and was frail. The form said Ms D became aggressive at times and frustration caused her to get agitated. She was very mobile and was confused.
14. A clinical manager completed a pre-admission assessment on 1 March. The form listed Ms X as the referrer and two other relatives as Ms D’s next of kin. The form said Mrs C had power of attorney, gave her phone numbers and described her as the main contact for Ms D. The pre-admission assessment said Ms D had a history of verbal and physical aggression towards other residents in previous placements and also experienced aggression from others. She could become aggressive when provoked and she got frustrated. She went into other peoples’ rooms.
15. The Care Provider places prospective residents into a band according to their needs. It assessed Ms D as Band 4 which is for people who have ‘highly complex care needs and who are unstable and unpredictable.’
16. A form called ‘My day, my life, my portrait’ completed on 1 March said Ms D had dementia and needed support with personal care. The form did not mention Ms D had challenging behaviour. The form gave Mrs C as the first contact and included her full name and address, her mobile telephone number and stated she held power of attorney. The form also listed two other people as next of kin contacts (relatives of Ms D).
17. The Care Provider drew up care plans for Ms D. The Nursing Home’s nurse has signed these. There is a sticky note attached to one of the plans (consent to access care documentation) saying ‘please ask NOK (next of kin) to sign’. There is no evidence that Mrs C or the other attorneys were consulted about any of the care plans.
18. Information about Ms D’s personal history (like where she was born, her hobbies and so forth) has not been completed. There is a sticky note on the form saying ‘please ask family to fill in.’
19. A computer record indicates the Care Provider sent out a contract to Ms X on 14 March. She did not return a signed copy. The contract said that during the trial period (the first 60 days) either party can end the contract by giving seven days’ notice. The contract set out the weekly fee of £980. It did not set out the cost of any one to one care that might be required (on top of the weekly fee).
20. On 15 March, a mental health nurse from the NHS mental health team visited Ms D. The note of their visit said Ms D had not shown any challenging behaviours and was eating, drinking and sleeping well. The mental health team visited Ms D again three days later noting she had not shown any behavioural or psychological signs of dementia.
21. The Care Provider’s mental health and dementia care plans for Ms D dated 19 March said she had a history of violence and aggression towards other residents. The plan said staff were to supervise her at all times when she was with others and divert her from negative behaviour. Staff were to encourage her to take part in activities.
22. Staff kept daily records for Ms D summarising how she had been. There was nothing of note until 23 March when Ms D destroyed another resident’s property and opened her bowels in the resident’s room. The Care Provider decided to put in place one to one care on 25 March for 12 hours during the day.
23. Staff completed a behavioural assessment tool. This set out possible causes of Ms D’s challenging behaviour. Staff completed behaviour monitoring charts. They were to try and avoid sitting Ms D with certain residents.
24. Staff recorded frequent episodes of challenging behaviour including:
• Damage to property
• Throwing drinks over residents
• Putting tissues on another resident’s face.
25. A care plan review on 25 March noted there was one to one support in place to protect others. The notes said ‘will discuss with family and regional manager.’ Later that day the member of staff noted they had spoken to Mrs C who had said there had been similar problems at home and Ms D had been ‘sectioned.’ Mrs C (who was away on holiday) said she would pay for one to one support at present. One of the other attorneys also spoke to a senior member of staff. The other attorney said Ms D could be aggressive and smash things.
26. In a later call, Mrs C told a senior member of staff she did not agree to pay for one to one care, had not signed anything and did not agree with the rates.
27. On 26 March, a nurse spoke to Mrs C. Mrs C said she was disappointed that the other relatives had not explained about Ms D’s behaviour when she lived at home. The nurse said Ms X had said Ms D could be aggressive but had indicated this was when provoked by others.
28. The mental health team visited Ms D on 26 March. The notes suggest the mental health team considered Ms D had been transferred from hospital too soon. The worker from the mental health team noted there had been a decline in Ms D’s mental state which was similar to her presentation before she went into hospital.
29. The Care Provider gave Mrs C seven days’ notice on 28 March.
30. On 29 March, a nurse from the mental health team spoke to a senior member of staff at the Nursing Home about Ms D possibly returning to hospital.
31. On 5 April, a senior member of staff spoke to a social worker to explain the Nursing Home would not have offered Ms D a placement had they known about her history and Ms D was now receiving one to one care round the clock.
32. Ms D was admitted to hospital on 6 April as she was physically unwell. She did not return to the Nursing Home.
33. The Care Provider sent invoices to Mrs C and the other attorneys. The other attorneys paid the invoice in full without telling Mrs C.
34. Mrs C complained to the Care Provider in May 2019. She said the bill was too high, was in Ms X’s name when Ms X was not Ms D’s attorney and the other attorney should not have paid it. Mrs C said one to one care was not always in place when she and other relatives visited Ms D and the £4500 she had put forward to settle the bill was reasonable. She said she had not signed any contract and she had intended the placement as a temporary period of respite to see if Ms D settled in.
35. The Care Provider responded saying:
• Based on the information provided at the assessment, it could meet Ms D’s needs, but within a week, Ms D showed negative behaviours which staff discussed with Ms X as she was named as the first point of contact
• Ms X said Ms D had no history of challenging behaviour
• Staff met with the other attorneys shortly after Ms D moved in and they were advised about the one to one care and agreed to it
• Had staff been aware of the previous history, they would not have accepted Ms D
• It sent the invoice to all the attorneys on the same day. It was the attorneys’ responsibility to communicate between themselves if there was any dispute about the invoice
• The standard weekly charge covered the care needed without challenging behaviour. Ms D required additional one to one care to protect her and other residents. This meant there needed to be one extra member of staff for Ms D.
• There was an alarm and pressure pad in place, but this only alerted staff that Ms D had left her room. Residents were free to move about within the home
• When residents had visitors, staff gave them some space and privacy. The one to one carer was close to Ms D for observation
• She was on holiday before one to one care was put in place and staff spoke to the other attorney
• It sent the contract to Ms X as she was the contact the administrator had on the paperwork.
36. Mrs C was unhappy with the Care Provider’s first response and asked for a review. The Care Provider’s second response said:
• Ms D had only been in the mental health unit for a week (having been transferred from another mental health unit) and the member of staff who assessed her could not get access to her computerised NHS mental health records and so there was only limited information available about her history
• Ms X advised Ms D had bitten carers at home once. She said the only issue since hospital was an ongoing bowel problem
• The clinical manager who carried out the assessment said the Nursing Home was not suitable for those who had challenging behaviour and no-one said Ms D had been ‘sectioned’
• Mrs C was on holiday, so the Nursing Home liaised with Ms X and the other attorneys and at a meeting with the mental health team, it came out that the challenging behaviour had been happening at home. The mental health team felt Ms D should not have been discharged and the clinical manager said one to one care was needed
• Mrs C had provided written information after she got back from holiday. Had this information been available earlier, the Nursing Home would not have offered Ms D a place
• The records indicate staff had several discussions with Ms D about why one to one care was needed
• The contract said if it was not signed, the terms and conditions would still apply.
37. The Nursing Home’s manager told me:
• At the time of the assessment Ms D did not present with challenging behaviour and there was no recorded evidence of challenging behaviour
• Mrs C had lots of records of Ms D’s challenging behaviour and if she had made this information available then the Nursing Home would have said it could not meet her needs safely without one to one care
• Staff told Mrs C the one to one support would be at an additional cost
• He refused to refund Mrs C because she withheld vital information which would have changed its pre-admission assessment
• Another person (a relative, Ms X) received a copy of the contract as at the point Ms D went into the Care Home, the Care Provider had no details of the attorneys. That relative did not return a signed copy of the contract and this was not chased as notice was given.

Findings

Complaint a: There was a failure to complete a full pre-admission assessment of Ms D’s care needs which meant the Care Provider did not have the full picture about her history of challenging behaviour

38. I uphold this complaint. The Care Provider did not act in line with Regulations 12 or 9 of the 2014 Regulations which was fault. My reasons are in the following two paragraphs.
39. I would expect the Care Provider to have spoken to Ms D’s attorneys as part of the pre-admission assessment, especially as they held powers for health and welfare as well as finances. The pre-admission assessment contained Mrs C’s contact details and, although she was on holiday, there was a mobile number for her and so she could have been reached by phone. The failure to seek relevant information from Mrs C was fault.
40. The pre-admission assessment form included brief information that Ms D had a history of aggression. I note the clinical manager tried and failed to access NHS information from the mental health unit about Ms D. Given it was noted Ms D had a history of aggression, I consider the clinical manager should have tried again to get information about Ms D’s history from the mental health unit to establish whether or not it could meet her needs before offering a place. The failure to seek relevant information before offering Ms D a place was fault which caused avoidable distress to Ms D and and inconvenience to Mrs C who had to make alternative arrangements for Mrs C’s care when the placement broke down.
41. Had the Care Provider carried out an adequate assessment and obtained a full history from mental health services and from Mrs C, it is likely it would not have offered Ms D a place.

Complaint b: The Care Provider evicted Ms D for behaviour it should have been aware of had it carried out a full assessment

42. It is likely the Care Provider would not have offered Ms D a place had it consulted with the NHS and Mrs C properly. The Care Provider was not at fault in serving notice as it could not meet Ms D’s needs unless her attorneys would pay for one to one care. The evidence indicates Ms D changed her mind and was not willing to fund one to one care. This meant continuation of the placement would not have been tenable as without one to one care, other residents would have been placed at risk. I do not uphold this complaint as the Care Provider should only provide services to those whose needs it can meet.

Complaint c: BUPA charged too much for the care received and did not provide the one to one support it said Ms D needed

43. I am satisfied, based on the care records, that Ms D received one to one care from 25 March. I am also satisfied the Care Provider spoke with Mrs C about the reason it needed to put in place one to one care on the day one to one care started.
44. However, the Care Provider should have sent a copy of the contract and standard written information about additional fees for one to one care to all the attorneys. The Care Provider should also have involved and consulted with the attorneys about Mrs C’s care plans. There is no evidence it did. This was an additional fault and was not in line with Regulations 9 and 19 of the 2014 Regulations. The failure to send the contract and information about one-to-one costs caused confusion about the fee and the lack of involvement in care planning caused additional avoidable distress.

Agreed action

45. The Care Provider will, within one month:
• Apologise to Mrs C for the failure to complete an adequate pre-admission assessment.
• Instruct administrative staff to ensure they send copies of contracts and any additional care cost to attorneys
• Ensure clinical managers and other staff completing pre-admission assessments consult with attorneys and seek appropriate information from the NHS about a prospective resident’s needs before offering a place.
46. I have considered whether a partial refund of fees is appropriate and I am satisfied it is not in this case because:
• Ms D received care for this period with no other complaint to us about the quality of that care.
• Ms D’s behaviour declined after about a week of no recorded challenging behaviour and the Care Provider told Mrs C without delay that it needed to put in place one to one care. Mrs C appears to have agreed initially, then changed her mind
• The care records indicate one to one care was justified and provided
• The other attorney, who was also involved with Mrs C’s care, paid the fee without raising any concerns.

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Final decision

47. There was fault in the Care Provider’s assessment of Ms D’s needs because it failed to consult with her attorney or seek relevant information from the NHS. There was also a failure to send relevant information about fees or a copy of the contract to the attorney. This caused Mrs C avoidable frustration and confusion. The Care Provider will apologise and take action to prevent recurrence in other cases.
48. I have completed the investigation and shared a copy of this statement with the Care Quality Commission

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Investigator's decision on behalf of the Ombudsman