Essex County Council (19 008 038)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 26 May 2020

The Ombudsman's final decision:

Summary: Ms X complains about the care her late mother received at a care home, leaving her mother with injuries. She also complains about how the Council carried out a safeguarding enquiry following this incident. The Ombudsman finds fault with the care Mrs Y received at the Care Home and the way the Council carried out its safeguarding enquiry. The Ombudsman has made recommendations to remedy the injustice caused which the Council has agreed to.

The complaint

  1. The complainant, whom I refer to as Ms X, complains about the care her late mother, Mrs Y, received at a care home following an incidence leaving Mrs Y with injuries. Ms X also complains about how the Council carried out a safeguarding enquiry following this incident.

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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. 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)
  3. 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)
  4. 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

  1. As part of this investigation:
    • I considered the complaint made by Ms X and the response from the Council.
    • I made enquiries to the Council and considered its response.
    • I considered the Care Quality Commission fundamental standards.
    • I sent a draft of this decision to Ms X and the Council and considered the comments I received in response.

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What I found

The Care Quality Commission (CQC) fundamental standards

  1. The 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. Guidance on Regulation 13 (safeguarding from harm and abuse) says providers and staff must take all reasonable steps to make sure that people who use services are not subjected to any form of degradation or treated in a manner that may reasonably be viewed as degrading.
  3. Guidance on Regulation 12 (safe care and treatment) says incidents which have the potential for harm and affect the welfare of people using services must be reported internally and to relevant external bodies. Competent staff should review and investigate incidents and make sure that action is taken to remedy the situation and prevent further occurrences. Outcomes of investigations into incidents must be shared with the person concerned and, where relevant, their families, carers and advocates.
  4. Guidance on Regulation 20 (Duty of candour) says where a safety incident occurs the relevant person must be informed as soon as reasonably practicable after the incident has been identified. A step-by-step account of all relevant facts known about the incident at the time must be given, in person, by one or more appropriate representatives of the provider. This should include as much or as little information as the relevant person wants to hear, be jargon free and explain any complicated terms.

Safeguarding

  1. Section 42 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 decide whether it or another person or agency should take any action to protect the person from abuse or risk.
  2. The Care and Support Statutory Guidance identifies six key principles underpinning all adult safeguarding work: empowerment; prevention; proportionality; protection; partnership; and accountability.
  3. The Council’s Safeguarding Adults Guidelines says someone passing away during an enquiry should not result in the process stopping. If the person dies during the safeguarding enquiry the following applies:
    • The safeguarding procedures must be completed if the enquiry is already in progress before the death.
    • If the safeguarding enquiries have not begun and the person dies, the safeguarding process still should be started where the abuse is suspected as being a contributing factor to the death.
  4. The Guidance also says all stages and decision of the safeguarding process must be recorded in writing and shared with the relevant person.

Background

  1. Mrs Y suffered with multiple health issues including dementia. Following several safety incidents while she lived at home Mrs Y’s family and the Council’s social care team raised concerns she could not look after herself at home.
  2. In October 2017 Mrs Y was admitted to hospital due to several falls in her home. The Council carried out an assessment and found Mrs Y could not care for herself.
  3. After the hospital discharged Mrs Y, the Council moved her into respite care as an emergency placement for an initial period of four weeks. The records show Mrs Y had bruising on her left cheek, bruising on her left arm and a cut on her right arm when she moved into the Care Home.
  4. On 21 October 2017 Mrs Y rang her son to say two male carers had entered her room and hit her. Mrs Y’s son telephoned the Care Home on the same day. The Care Home told him Mrs Y was fine.
  5. On the morning of 22 October 2017 Ms X visited Mrs Y at the Care Home and found she had bruising over her right eye and face. Ms X telephoned her brother who called the police and an ambulance, alleging Ms Y had been assaulted at the Care Home. When the ambulance and police arrived, the paramedics decided to take Mrs Y into hospital.
  6. Mrs Y told the police two male care workers had assaulted her on 20 and 21 October 2017. Mrs Y said both had punched her in the face after she had protested against taking night medicine. In Mrs Y’s statement to the police she could not identify the perpetrators.
  7. The daily care notes from the Care Home show no mention of bruising to Mrs Y’s face until about 16:30 on 21 October 2017. This entry also mentions staff had taken her mobile phone as she was calling the police and saying night staff had beaten and molested her. There is no further information recorded about Mrs Y’s injuries until 22 October 2017 at 08:15 when a staff member noted the bruise on Mrs Y’s eye was “coming out more”.
  8. When providing statements to police Care Home staff mention seeing Mrs Y at 09:30 on 21 October 2017. They said she had a swollen face and was rubbing her eyes which were red and swollen. Mrs Y also told staff two men had molested her and hit her with a hammer. They also mention Mrs Y lay with her head on a table the day before the bruising.
  9. Care Home staff said Mrs Y would often have a swollen face in the mornings and would often go into other residents’ rooms. When staff asked her to leave she often made allegations against male staff members.
  10. On 23 October 2017 the Council received three safeguarding referrals for Mrs Y, from the Care Home, the hospital and police. The Council opened a safeguarding enquiry to find out how Mrs Y suffered the injuries while at the Care Home. The Council then moved Mrs Y into a new care home after she left hospital.
  11. The Council met with Mrs Y’s family, including Ms X and visited the Care Home as part of the safeguarding enquiry to gather the care records. The Council visited Mrs Y in hospital. The Council’s records show Mrs Y could not advise why she was there or provide details of the incident which occurred. In November 2017 Mrs Y passed away. The records show this was unrelated to the injuries suffered at the Care Home.
  12. The Council completed its safeguarding enquiry in early December 2017 and found the outcome inconclusive as Mrs Y passed away. The Council decided it could not identify what happened or who was responsible and could not get this information from Mrs Y. The Council did not send its conclusion to the safeguarding enquiry to Mrs Y’s family.
  13. Ms X contacted the Council in April 2018. She said none of the family had heard from the safeguarding enquiry. Ms X also engaged the assistance of an advocacy service to help her as she had not received any contact from the safeguarding team about Mrs Y’s case.
  14. In May 2018 Ms X raised a formal complaint with the Council. She said she did not believe the safeguarding enquiry included members of Mrs Y’s family and no member of the family has received an outcome from this enquiry. Ms X also sought an explanation about what happened in the last 48 hours of care Mrs Y received at the Care Home.
  15. The Council responded to Ms X’s complaint to say the social worker carrying out the safeguarding enquiry did not send the family the outcome and apologised for this.
  16. Ms X remained dissatisfied and complained to the Ombudsman. At this time the police were investigating the injuries Mrs Y suffered while at the Care Home. The Ombudsman discontinued his investigation as the police were currently carrying out their own investigation.
  17. The police investigation was inconclusive and could not discover how Mrs Y suffered her injuries. The police decided it could not rule out an assault on Mrs Y by Care Home staff. The police thought it more likely Mrs Y may have fallen without the Care Home knowing or sustained the injury from rubbing her eye.
  18. After the police investigation the Council decided to review Ms X’s complaint. The Council provided a final response to Ms X in November 2019. The Council said it had written off Mrs Y’s charges for the Care Home. The Council also identified several issues following the police investigation which it would discuss with the Care Home and other social care professionals. These included:
    • The home not contacting Mrs Y’s family when staff noticed the bruising.
    • Mrs Y’s phone was confiscated as she contacted the emergency services.
    • The home did not seek timely medical attention for Mrs Y.
    • There was a lack of detail in the daily care logs.
    • The outcome of the safeguarding was not fed back to Mrs Y’s family.
  19. After discussing the above with the Care Home and social care professionals the Council and Care Home agreed to put in place measures to improve its service.
  20. Ms X remained dissatisfied and contacted the Ombudsman. Ms X also said her sister has since been sent invoices in December 2019 and January 2020 for Mrs Y’s care.

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Findings

The care Mrs Y received

  1. I cannot say how Mrs Y suffered her injuries. The police investigated this and found it could not determine the cause of Mrs Y’s injuries.
  2. There were faults in the care Mrs Y received at the Care Home. The Care Home records are not detailed nor do they reflect Care Home staff views about Mrs Y. Care Home staff said Mrs Y often made allegations about male staff and often had a swollen face in the mornings. I cannot see reference to this in the daily logs.
  3. There was also no record of Mrs Y’s bruising on the weekend on 21-22 October 2017 until around 16:30 on 21 October 2017. This is despite a Care Home staff member saying they visited Mrs Y at 09:30 on 21 October 2017 and noticed bruising on her face. Mrs Y also told Care Home staff she had been assaulted at this time. Again, I would have expected Care Home staff to record this information in the daily logs.
  4. I cannot see evidence the Care Home staff reported Mrs Y’s injuries internally when they noticed them. Nor was a review or investigation into Mrs Y’s injuries carried out by the Care Home. This is fault. Given the extent of the injuries I would have expected staff to report these internally within the Care Home and for the cause to be investigated as per Regulation 12 of the CQC fundamental standards.
  5. There is also no evidence the Care Home sought medical attention for Mrs Y. I would have expected the Care Home to have sought medical attention for Mrs Y in light of her injuries especially as when the paramedics attended she was transferred to hospital.
  6. The Care Home did not tell Mrs Y’s family about her injuries and confiscated her mobile phone. This is fault. From the evidence available, the Care Home became aware of her injuries on 21 October 2017 at 09:30. On the daily logs there is an entry mentioning Mrs Y’s bruising at 16:30 on 21 October 2017. This also mentions Mrs Y was trying to call the emergency services about her injury. The entry also mentions the Care Home took Mrs Y’s mobile phone but told her she could telephone family members.
  7. From the evidence available it is clear Mrs Y was distressed as she was trying to contact her son and emergency services. It would have been appropriate for the Care Home to tell her family of the situation and bruising on her face. This would have allowed the Care Home to explain what it thought had happened to Mrs Y. Instead Ms X first found out about the injuries on 22 October 2017 when she visited Mrs Y. This would have caused her distress seeing Mrs Y in this condition.
  8. I recognise the Council has met with the Care Home to discuss learning points from this situation and the Care Home has put in place measures since the incident on 21-22 October 2017 took place. I also accept the Council agreed to write off Mrs Y’s charges for her time at the Care Home. However, by not keeping proper records and failing to tell Mrs Y’s family of the injuries it is difficult to establish the level of care Mrs Y received at the Care Home or the likely explanation for her injuries. This would have led to uncertainty for Ms X about whether failures at the Care Home caused Mrs Y’s injuries.
  9. While I recognise the Council has re-looked at this and discussed learning points I consider a financial payment to Ms X would be suitable for the distress and uncertainty caused. In coming to this figure, I have considered the severity of uncertainty caused by the faults identified. As a result, Ms X cannot be sure how Mrs Y suffered her injuries at the care home.

Safeguarding enquiry

  1. The Council decided to progress the safeguarding enquiry on 23 October 2017. The Council met with Mrs Y’s family, including Ms X, and visited the Care Home to get its records. The Council closed the safeguarding enquiry in early December 2017 after Mrs Y passed away. The reasons given were Mrs Y’s death were not related to the injuries at the Care Home.
  2. I have found fault as the Council did not tell the relevant family member the outcome of the safeguarding enquiry. This led to Ms X contacting the Council in 2018 to chase this up. From the evidence available I am still uncertain whether a copy of the safeguarding enquiry has been provided to the relevant family member.
  3. There is also fault as the Council ended the enquiry after Mrs Y passed away. The Council’s safeguarding guidelines say the Council should complete the enquiry if the person dies and when it is already in progress. From the records the Council decided to progress the matter to a full safeguarding enquiry on 23 October 2017 around a month before Mrs Y passed away.
  4. Had the Council finished the enquiry it may have been able to establish some of the issues with the Care Home at an earlier stage and taken steps to address these.

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 service of the Care Home, my recommendations are for the Council.
  2. The Council agreed to carry out the following within one month of my final decision and provide evidence to the Ombudsman it has done so:
    • Apologise to Ms X for the above faults identified.
    • Pay Ms X £600 for the distress and uncertainty caused for the above faults by the Care Home.
    • Pay Ms X £250 for the failings in the safeguarding enquiry.
    • Provide a copy of the safeguarding enquiry to Mrs Y’s relevant family member if the Council has not done so already.
    • Provide evidence the charges for Mrs Y’s time in the care home have been written off.
  3. The Council agreed to carry out the following within three months of my final decision and provide evidence to the Ombudsman it has done so:
    • Ensure the Care Home takes steps to improve its record keeping and provide evidence to the Ombudsman it has done so.

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Final decision

  1. I have completed my investigation and found fault which caused injustice to Ms X. The Council has agreed to remedy the injustice caused.

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Parts of the complaint that I did not investigate

  1. I did not investigate the cause of Mrs Y’s injuries. The police have already carried out an investigation into this and could not conclude how Mrs Y sustained her injuries. I am unable to add anything further to this.

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Investigator's decision on behalf of the Ombudsman

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