Summary: The Care Provider is at fault for failing to make a Deprivation of Liberty Safeguards referral in good time and losing clothing. The Care Provider also failed to monitor oral hygiene, complete adequate risk assessments, or record properly. As a result of these faults there is uncertainty about whether Mrs D was properly cared for, and whether it was appropriate for the Care Provider to ask her to look at alternative care homes. The Care Provider has agreed to make service improvements, procedural changes, and payments to Mrs D and Mr C to remedy the complaint.

The complaint

1. The complainant, whom I refer to as Mr C, complains on behalf of his mother, who I refer to as Mrs D. Mr C complains that Aylesham Court Nursing Home part of Bupa Care Homes (BNH) Limited, the “Care Provider”:-
1. took too long applying for authorisation of a Deprivation of Liberty Safeguards (DoLS);
2. did not do enough to properly care for Mrs D when she was confined to a wheelchair with a lap belt for long periods of time;
3. lost several items of her clothing;
4. did not take any action or notice when her denture was broken;
5. gave notice to Mrs D in retaliation to his complaints.
2. Mr C says his dealings with the Care Provider left him distressed and frustrated. He says he feels his mother paid for a service she did not receive. Her legs became swollen, and had he not raised concerns she would have been left in a wheelchair with no proper authorisation.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
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. A colleague spoke with Mr C and made enquiries of the Care Provider. I considered the Care Provider’s response.
7. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC), the regulator of care services has issued guidance on how to meet the fundamental standards below which care must never fall. I considered the fundamental standards when deciding about fault.
8. I also considered:-

• Mental Capacity Act 2005;
• Code of Practice on Deprivation of Liberty Safeguards (DoLS);
• Competition and Markets Authorities (CMA) advice, “UK care home providers for older people – advice on consumer law”.

9. Mr C and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

10. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure and timescales to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
11. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
12. Regulation 17 – “Good governance” requires care providers to maintain accurate, complete and detailed records for each person using the service.
13. Regulation 13 is to safeguard people receiving services from suffering any form of unlawful restraint while receiving care and treatment. It includes inappropriate deprivation of liberty under the terms of the Mental Capacity Act 2005.
14. Regulation 12 - “Safe care and treatment” aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment. Guidance says providers must do what is reasonably practicable to mitigate risks.
15. Regulation 10 – “Dignity and respect” says people receiving care and treatment, must be treated with dignity and respect at all times.
16. Regulation 9 – “Person-centred care”. This regulation says that people receiving services have care and treatments that is based on an assessment of their needs and preferences.

Complaint (a) Deprivation of Liberty Safeguards (DoLS)

Background information

17. Mrs D has several health conditions and lacks capacity to make decisions about her care. Mrs D moved into the care home in March 2019 to receive end of life care.

What happened

18. The Care Provider initially nursed Mrs D in bed and to prevent injury installed bed sides and bumpers. The Care Provider says it did not make a DoLS referral for these restrictions as it was providing end of life care.
19. The Care Provider says Mrs D was at high risk of falling out of a standard chair. To prevent injury the Care Provider supported Mrs D to sit in her wheelchair and used a lap belt. There is no record of a risk assessment. The Care Provider made a DoLS referral five weeks after the use of a lap belt, after Mr C raised concerns.
20. The Care Provider accepts and apologises for failing to make a DoLS referral for the use of bed equipment, and the delayed referral for the use of a lap belt. It says it will remind staff to make referrals promptly.
21. Mr C says Mrs D spent long periods of time in the wheelchair where she received personal care. Mr C says Mrs D’s legs became swollen because of the length of time she spent in the wheelchair. Mr C says since moving to a new care home Mrs D has sat on communal chairs without the need for any restraint.

Is there fault causing injustice?

22. The Care Provider is at fault for failing to make DoLS referrals earlier. It should have done this when bed sides were introduced and the use of a lap belt. This is also a potential breach of regulation 13 as failure to do so could amount to unlawful restraint.
23. I am unable to say the provision of bed sides caused Mrs D any injustice. Mr C does not comment on any injustice, and nothing in the care records suggest Mrs D suffered because of their implementation.
24. Mrs D’s freedom of movement was however affected by the imposition of the lap belt. There is no risk assessment or other record suggesting increased risk to support the Care Provider’s decision to use the lap belt. Neither are there any action plans or notes of the Care Provider trying or considering other less restrictive options. This is a potential breach of regulation 17.
25. Mrs D’s current care home is supporting her without restraint. While this may be due to a change in Mrs D’s needs, on balance based on the accounts of both parties, and the care records there is insufficient evidence to show the Care Provider acted in the least restrictive manner.
26. It appears the Council never reached a decision on a DoLS authorisation as Mrs D moved a few days after the care home made the referral. It is therefore difficult to know now whether the Council would have authorised the restriction.
27. As a result of the failings identified both Mrs D and Mr C have the uncertainty of not knowing whether the Care Provider unnecessarily restricted Mrs D’s freedom of movement.

Complaints (b) – (d) Service failure

Was there fault causing injustice?

28. Swollen feet - When Mrs D entered the care home, she was prescribed frusemide. A GP removed this from her prescription on 3 April. On 16 May the records show that Mr C raised concerns about Mrs D having swollen feet. The care home contacted the GP who re-prescribed the frusemide. A week later, Mrs D’s feet had improved.
29. The decision to change the medication was a health one which the Care Provider cannot be held responsible for. There is nothing to suggest Mrs D suffered with swollen feet for a prolonged period, or that the Care Provider should have acted earlier. The Care Provider took appropriate action when it became aware of the problem, I therefore do not find fault in this element of the complaint.
30. Broken denture - When Mrs D entered the care home several documents including a care plan highlight that she had a tooth on a plate for her upper pallet. The Care Provider records that Mrs D wanted support with her oral care and her teeth cleaned morning and evening.
31. On a visit Mr C noticed Mrs D’s false tooth was missing, he raised this with the care home who called the dentist. On examination the dentist found Mrs D’s plate was broken but still in-situ.
32. There is no evidence within the care records of the Care Provider consistently supporting Mrs D with her oral hygiene as per her care plan. This is fault and a potential breach of regulation 9.
33. I am unable to say what effect this had on Mrs D, and the duration of that effect. Mr C however has the uncertainty about whether the Care Provider could have acted earlier.
34. Lost clothing - Mr C says the Care Provider lost Mrs D’s clothing. The Care Provider does not take an inventory of clothing. It has agreed to reimburse the costs of clothing up to the value of £250 if Mr C can provide receipts. Mr C says he is unable to provide receipts for the mislaid clothing.
35. The Care Provider says that it is not responsible for the loss of people’s personal belongings. However it is unclear how residents can protect clothing that is laundered and handled by the Care Provider. The Care Provider does not have an inventory system which would help in identifying lost items.
36. The Care Provider now provides a waterproof marker as part of its welcome pack to label clothing. While the steps taken by the Care Provider are welcome, I consider it is unreasonable to expect Mr C to find receipts for lost items that might have been bought some time ago.

Complaint (e) The Care Provider gave notice to Mrs D in retaliation to Mr C’s complaints

What happened

Mr C says he attended a meeting to voice his concerns about his mother’s care. He was therefore shocked when during the meeting he was told the care home was no longer suitable for Mrs D, and he should look for an alternative care home. He considers the care home’s decision was in retaliation to his complaints. Mr C also found the home manager disrespectful in her depiction of Mrs D to justify the use of a lap belt.

37. The Care Provider says Mrs D’s health had improved and she required a residential home which could support Mrs D with her dementia. It says the care home made the decision after discussion between the home manager, the Clinical Services Manager and senior carers. The home manager said she intended to discuss this with Mr C but as there was a meeting scheduled decided to raise it at that time.
38. There are no records of the meeting or discussions between staff members about Mrs D’s need for residential care.

What should have happened

39. The Competition and Markets Authorities (CMA), “UK care home providers for older people – advice on consumer law” November 2018 says,
40. “1.33 You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s needs….
41. 1.35 You must never ask a resident to leave or restrict a resident’s right to have visitors or threaten to do so in retaliation to a complaint.”

Was there fault causing injustice?

42. The Care Provider is at fault for failing to compile a written record of the meeting with Mr C. This is a potential breach of regulation 17. As a result there is uncertainty about what was said at the meeting.
43. I am unable to make a finding on whether the home manager acted unprofessionally when describing Mrs D. This is because there is dispute about what happened, and no independent witness or record.
44. The care home manager disputes she gave notice at the meeting. She says she told Mr C the care home was no longer suitable for Mrs D and he should look for another care home. Although the Care Provider did not technically “serve notice” on Mrs D I consider its actions were as if it had.
45. There is no evidence the Care Provider followed CMA advice in looking at ways to meet Mrs D’s different needs within the care home prior or after telling Mr C he should look for an alternative care home. There is also nothing within the care records which suggest the Care Provider was finding it difficult or challenging to support Mrs D within the care home. I consider the failure to consider alternative options is fault.
46. On balance, and without further evidence to the contrary, it does appear as if the Care Provider made the decision about the suitability of the placement based on Mr C’s complaints. This is fault.
47. The way the Care Provider told Mr C about the suitability of the care home caused him stress and anxiety. I am unable to say now whether had the Care Provider acted properly Mrs D would not have left the care home. Mrs D does however have the uncertainty that she may not have had the time, trouble, anxiety, and stress in leaving the care home.

Agreed action

48. I have found fault in the Care Provider’s actions. The Care Provider has agreed to take the following actions to remedy the complaint.

Actions to remedy Mrs D’s and Mr C’s injustice

1. apologise to Mrs D and Mr C about the failures I have identified in this statement,
2. make a payment of £400 to Mrs D for the distress caused by the Care Provider’s actions. These include restricting her movement without the appropriate approvals for an appreciable period of time, and the service failure identified in the statement;
3. make a payment of £250 to Mrs D to replace her lost clothing;
4. make a payment of £250 to Mr C for his time and trouble in making this complaint and the uncertainty and distress caused by the actions of the Care Provider.
1. The Care Provider should complete these actions within one month of the final decision.

Actions to improve future practice

1. remind staff about the importance of making DoLS assessments and referrals within the prescribed timescales;
2. to review all residents in the care home to ensure it has completed the necessary DoLS assessments and referrals;
3. to spot check the care home over the next year to ensure it has completed the appropriate assessments and referrals;
4. to remind staff about the importance of recording. This includes,

• daily personal care such as oral hygiene which is included as part of an individual’s care plan;
• risk assessments;
• important decisions, including where relevant the views of others;
• minutes or records of meetings held with family members;
5. remind staff of CMA guidance about what to consider before asking a resident to look for alternative accommodation.

50. The Care Provider should complete these actions within three months of the final decision.

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Final decision

51. I have found fault in the actions of the Care Provider which has caused both Mrs D and Mr C injustice. I have now completed my investigation and closed the complaint based on the agreed actions detailed above.
52. As I have found potential breaches of regulatory standards under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), I also intend to share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman