Summary: Mrs B complained about a Council-funded care home’s poor care and communication around the end of her late mother’s life, as well as poor complaint handling. The Ombudsman does not uphold the complaint about end of life care and communication with Mrs B before her mother died. The Ombudsman has found faults in the care home’s procedure, record keeping and communication with Mrs B after her mother died. The Council accepts our recommendations, so we have completed our investigation.

The complaint

1. A woman I shall call Mrs B complains about Mallands Residential Care Home (the Home), a care home acting on behalf of the Council. Mrs B complains the Home did not:
• communicate adequately with her in the last days of her late mother, Mrs D’s, life;
• check adequately on Mrs D in the last day of her life and may have left her alone when she was dying;
• allow Mrs B to visit her mother after she had died, before Mrs D was seen by a doctor and transferred to a mortuary; and
• provide a timely response to Mrs B’s complaint or all the information she had requested.
2. Mrs B says that as a result, Mrs D may have been left alone at the end of her life and she and her mother missed out on the opportunity to spend that time together. Mrs B says she has been unable to get closure on the death of her mother and what really happened at that time.
3. Mrs B would like a meaningful apology and a copy of the record for her mother’s last day at the Home.

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The Ombudsman’s role and powers

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. 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.
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
7. 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)
8. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. 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)
10. 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

11. I have considered information provided by Mrs B and her representative in writing and by telephone. I have also considered written information provided by the Council and the Home. Mrs B, the Council and the Home have had an opportunity to comment on a draft version of this decision and I have taken their comments into account before reaching a final decision.

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What I found

Background summary

12. Mrs D was discharged from hospital to the Home on 18 December 2018 for a short-term stay. Mrs D died at the Home on 21 December 2018. Mrs B did not have the opportunity to visit her mother that day. She considers this was as a result of fault by the Home.

Checks on Mrs D and communication with Mrs B in the last days of Mrs D’s life

13. Mrs B complains that the Home did not check on Mrs D adequately on 21 December 2018. She is concerned that her mother was alone when she died. Mrs B also complains the Home’s communication with her in the last days of Mrs D’s life was inadequate.
14. Mrs B visited Mrs D on 20 October 2018 and considered her mother looked unwell. In the early hours of 21 December 2018, the Home called the out of hours doctor who saw Mrs D and issued an antibiotic for a chest infection. The Home called Mrs B later that morning to tell her about this.
15. Mrs B says that during the call with the Home in the morning of 21 December,
• she asked whether her mother was very unwell; and
• the Home told her “no, far from it”.
16. Mrs B therefore decided to visit her mother later in the day after work. Mrs D died before Mrs B had the opportunity to visit her. A post mortem examination later revealed she died of pneumonia. Mrs B says that
• the Home initially told her that a staff member (Staff 1) was with Mrs D when she died; however
• when she went to collect Mrs D’s belongings, another staff member (Staff 2) told her that Mrs D had been on her own when she died and that Staff 2 had found her.
17. Mrs B considers that the Home should have realised Mrs D was approaching the last days or hours of her life and communicated this, so they could spend that time together.
18. The Home says that it did not expect Mrs D to die so suddenly.
19. The Home’s records say that Mrs D was seen by a GP and a community nurse on the day she died. There is no indication either professional considered Mrs D was in the last hours of her life.
20. Mrs D’s care plan says that staff should check her every two hours. The Home’s records show frequent interaction between the staff at the Home and Mrs D. While she was clearly unwell on 21 December 2018, records note that when staff saw Mrs D on nine occasions that morning:
• she was conscious;
• she had small amounts to eat and drink; and
• staff changed her position to relieve pressure on her skin.
21. Although Mrs D was unwell, there were no obvious indications from how she was recorded as presenting, or from the medical professionals who saw her that day, that she was in the last few hours of her life. I therefore consider that the Home was not at fault in:
• not recognising that Mrs D was approaching the end of her life;
• checking on her every few hours, rather than more frequently; and
• informing Mrs B that her mother was not considered to be very unwell in the morning of 21 December 2018.

Communication with Mrs B after Mrs D had died

22. Mrs B says that:
• when the Home called her to tell her that Mrs D had died, she asked to see her mother;
• the Home denied her this opportunity stating a doctor needed to see her first;
• a few hours later the Home called her again to tell her Mrs D had been taken to a hospital mortuary and was in the care of the coroner; and
• the coroner told her that she could not see her mother until a post mortem examination had been performed.
23. The Home says that:
• it did not refuse Mrs B permission to see Mrs D after she had died;
• however, when someone dies unexpectedly in the Home, the deceased cannot be moved or touched until they have been seen by a GP to rule out a suspicious cause of death; and
• the GP who saw Mrs D decided she should be taken into the care of the coroner as her death was sudden and unexpected.
24. Mrs B disagrees with the Home’s statement about what happened. Mrs B says a GP could not see Mrs D, which is why she was taken into the care of the coroner.
25. 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) has issued guidance on how to meet the fundamental standards which care must never fall below. Regulation 17 (good governance) says care providers must maintain complete and accurate records for each service user.
26. The Home’s procedure on dealing with sudden and unexpected death says that the scene should not be disturbed or touched in any way. It also says (in summary) that the Home should:
• call the police and ambulance services straight away;
• complete an incident form as soon as possible;
• complete a timeline and ensure care workers provide a detailed report as soon as possible;
• not inform the deceased’s relatives until given permission to do so by the police and until it has sought guidance from the Council.
27. The Home did not follow its policy. There are no records of it completing an incident form, timeline and detailed report. There is no record of exactly when and how the Home discovered Mrs D had died and who found her. There are also no records of it contacting the emergency services and the Council and getting permission to contact Mrs B about Mrs D’s death.
28. The Home’s record of the time of Mrs D’s death is also inaccurate. The record for 21 December 2018 says Mrs D was repositioned and had a drink at 11:57. The record for 22 December 2018 says Mrs D died at 11:55 the previous day. The Council’s response to our enquiries says Mrs D died after 11:57 but before 12:44.
29. The Home’s poor recording of its discovery of Mrs D’s death and actions following this was contrary to Regulation 17 and fault.
30. As a result, Mrs B was left with justifiable doubt and concern about what happened in Mrs D’s last hours. I have made recommendations below for the Council to ensure Mrs B receives an apology and reviews the way the Home deals with sudden and unexpected deaths.
31. The Home accepts it pre-empted the GP’s visit in informing Mrs D of her mother’s death. It explained that it did this because it wanted to inform Mrs B personally and without a delay that may add to her distress. The Home also said that it did not refuse Mrs B a visit to view Mrs D, but that it strongly discouraged this. It explained that this is because:
• the Home is also not allowed to touch or move a deceased person, so would not have been able to provide last offices [care given to a body after death];
• to view a body as the person died could be very distressing for relatives, especially when a death has been unexpected.
32. We cannot verify exactly what the Home told Mrs B when it called her to let her know that Mrs D had died. It was not fault to discourage Mrs B from visiting Mrs D in these circumstances. Once the decision was made to send Mrs D to a mortuary into the care of the coroner, the matter was outside the Home’s control. It was not fault for the Home to follow a GP’s or coroner’s instructions.

Complaint handling

33. Mrs B says the Home delayed responding to her complaint and did not provide all the information she had asked for. In particular, she says that the Home did not send her a copy of her mother’s care records for 21 December 2018.
34. Mrs B contacted an advocacy service for help with making a complaint to the Home. Her advocate sent a letter of complaint to the Home by post on 17 June 2019. As the advocate had not received a reply a month later, she chased this up by telephone. The Home told the advocate it had not received the letter, so she re-sent it by email on 15 July 2019. The Home acknowledged this on 18 July 2019 and sent a written complaint response on 2 August 2019.
35. The advocate wrote to the Home again on 15 August 2019 as Mrs B still had some concerns and wanted to see her mother’s records. The Home wrote to Mrs B on 29 August 2019 enclosing Mrs D’s care records. The records for 21 December 2018 were not included. Mrs B’s advocate chased this up on 4 September 2019 but says she did not receive the information. The Home says it telephoned the advocate on 7 September 2019 (a Saturday) to advise that it had sent all the records previously, and emailed the advocate on 15 October 2019 asking if there was anything else Mrs B needed. The Home says it received no further response.
36. The time the Home took to respond to Mrs B’s initial complaint was not fault. This is because there is no evidence the Home received the complaint until 15 July 2019 and it responded less than three weeks later. The Home also replied in good time to Mrs B’s second letter of 15 August 2019.
37. However, the Home did not provide the records for 21 December 2018 until requested to do so by the Ombudsman. The printout provided to the Ombudsman shows that the Home can select the dates for which to print a care note report. The Home says it did not send the records for 21 December to Mrs D in August 2019 because of a misunderstanding in how the reporting system’s date selection worked.
38. Failing to provide the records for 21 December when asked by Mrs B’s advocate and then telling her that all the records had been provided was fault. As a result, Mrs B had justifiable doubt about whether records for 21 December existed, felt her complaint was not resolved, and could not feel a sense of closure around her mother’s death. I have made recommendations below for the Council to ensure Mrs B receives an apology for the upset she has suffered as a result. Mrs B has been provided with a copy of the records for 21 December 2018 as a result of our investigation.

Agreed action

39. In its comments on our draft decision, the Home has told us it:
• recognises it needs to update its policy on dealing with sudden and unexpected deaths needs;
• will remind staff of the need for accuracy when recording the times of events and incorporate anonymised details of this complaint into its staff training; and
• is sorry for the doubt the fault in providing care records have caused Mrs B.
40. We are reassured that the Home has committed to taking action to learn from this complaint.
41. The Council will, within a month of the date of my final decision, ensure Mrs B receives a meaningful apology for each of the faults identified in this decision and their impact on her.
42. The Council will, within three months of my decision, send the Ombudsman and Mrs B an explanation of what it has done to ensure the Home has:
• reviewed its policies and procedures on sudden and unexpected deaths in residential care, including record keeping, to ensure they comply with all relevant legislation and guidance; and
• made all relevant staff are aware of the reviewed policies and procedures.

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Final decision

43. I have found no fault in the way the Home, acting on behalf of the Council, cared for Mrs D or its communication with Mrs B before Mrs D died. I have found fault in the Home’s procedure, record keeping and communication with Mrs B after Mrs D died. The Council has accepted my recommendations. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman