Summary: Mr X complained about his father’s care in a care home. There was fault in the Care Provider’s communication and record-keeping. It provided contradictory and confusing information to the family and did not arrange a health appointment and prescription. There were delays in its complaint handling. The Care Provider’s faults did not cause injustice to Mr X’s father, but they did cause time and trouble for Mr X and the family experienced some worry.

The complaint

1. Mr X complained about his father’s (Mr Y’s) care home. In particular, he complained about the quality of care it provided, its communication with Mr X, its record keeping and administrative procedures and its complaint handling.
2. Mr X has experienced distress and worry due to his concerns for his father, and he has gone to extra time and trouble communicating with the Care Provider. He believes Mr Y did not receive good value for money due to poor care.

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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 investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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

8. I considered the information Mr X provided when he complained to us. I considered the records we obtained from the Care Provider, which included the daily care records, Mr Y’s risk assessments and care plans.
9. Mr X and the Care Provider both had an opportunity to comment on an earlier draft of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

10. 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 below which care must never fall.
11. The CQC regulations include, for example:
• Regulation 11: Need for consent. Consent is important but acting strictly in accordance with consent may mean some other regulations cannot be met. Providers must not provide unsafe or inappropriate care just because someone has consented to care or treatment that would be unsafe.
• Regulation 16: Receiving and acting on complaints. Providers must have an effective system for handling and responding to complaints. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
• Regulation 17: Good governance. Providers must maintain accurate, complete and detailed records.
12. The Care and Support Statutory Guidance (2020) explains at section 1.5 the importance of promoting control by the individual over day-to-day life (including over care and support provided and the way it is provided). Section 1.14 sets out further key principles, including the need to ensure any restrictions on an individual's rights or freedom of action when providing care is kept to the minimum necessary.
13. The Mental Capacity Act 2005 says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

because he or she makes an unwise decision;

based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or

before all practicable steps to help the person to do so have been taken without success.

What happened

14. Mr X’s father, Mr Y, stayed at Tennyson Wharf Care Home (the Care Home), which is run by Barchester Healthcare Homes Limited (the Care Provider), for a seven-month period between late 2018 and mid-2019.
15. In late 2018, Mr Y fell and was admitted to hospital overnight. Staff at the Care Home made one attempt to contact Mr Y’s wife. They did not leave a voicemail message and did not attempt to contact Mr X despite his telephone number also being on Mr Y’s care plan. Mr Y told Mr X and his mother in January about his hospital admission. Mr X made a formal complaint.
16. Mr X also raised concerns with the Care Home about its admission agreement which it had asked him to sign. He says, for example, it contained incorrect information about who paid Mr Y’s fees.
17. The Care Home replied to Mr X’s complaint in February 2019. It apologised for its lack of communication when Mr Y was taken to hospital. It explained it had a new manager who expected better communication. The Care Home did not respond to Mr X’s concerns about the admission agreement.
18. In mid-February, the Care Home called for an ambulance when Mr Y had chest pain. The Care Home contacted Mr X on this occasion.
19. Later in February, Mr X asked the Care Home to arrange a blood test to screen Mr Y for cancer. It assured him it would follow this up with the District Nurse. At the end of May, Mr X found out when he spoke to Mr Y’s GP that the blood test had not been carried out.
20. In mid-March, the Care Home called for an ambulance again about Mr Y’s chest pain. Mr Y refused ambulance transport on this occasion. The Care Home arranged for Mr Y’s GP to visit on the advice of the paramedics, to prescribe medication for his chest pain. Mr X made a formal complaint when he found out about this from the ambulance report nearly a month later, in mid-April 2019, as the Care Home had not contacted him or his mother.
21. At the end of April, Mr X contacted the Care Home as he had not heard anything further about his complaints. He telephoned it twice at the beginning of May, and it apologised verbally for its lack of communication following the call for an ambulance in March. Mr X asked it for Mr Y’s care records from the relevant three-day period in March. He also asked it to order more cream for Mr Y’s skin as this had run out.
22. At the end of May 2019, Mr X contacted the Care Home again as he had still not received any further complaint response. The Care Home acknowledged this.
23. Mr X raised concerns with the Care Home about Mr Y using a wheelchair as a walking aid and asked why care staff had not stopped him. Mr X queried whether the Care Home had carried out a relevant risk assessment.
24. Mr Y moved to a new care home at the beginning of June 2019.

Complaints correspondence between Mr X and the Care Provider

25. Mr X wrote to the Care Provider to highlight he had not received responses from the Care Home to his complaints. He asked the Care Provider to waive four weeks of care fees.
26. The Care Provider responded to Mr X’s escalated complaint at the beginning of July 2019. It said the Care Home had not sent it his complaint of May. It apologised about its lack of communication about Mr Y’s health. It explained Mr Y had the mental capacity to make decisions about his care and may have refused consent for information to be shared with Mr X, but this was not recorded if so.
27. The Care Provider said the Care Home had assessed Mr Y’s wheelchair use. It said while this was a high-risk activity, Mr Y had the mental capacity to be able to make his own decision and so the staff could not intervene. It apologised it had not communicated the outcome of the assessment to Mr X.
28. The Care Provider said the Care Home had not requested Mr Y’s blood test as this was the responsibility of the District Nurse. The Care Provider said it would review how it communicated with families, and said it would not waive four weeks fees (£4,760) as Mr X suggested because its investigation did not find failings that would warrant this.
29. In mid-August 2019, Mr X wrote to the Care Provider again. He questioned its having referred to Mr Y’s consent to sharing information because the family had been contacted on other occasions. He asked it to provide Mr Y’s mobility assessment. He said he did not accept that the Care Home staff could not intervene due to the level of risk to Mr Y and others.
30. Mr X told the Care Provider he had still not received a copy of the care records from May and the Care Home had not responded to his request for it to order more cream for Mr Y’s skin. Mr X reiterated his request for four weeks’ fees as the Care Home did not provide good value for money. He said this was because it was understaffed, and the staff were not adequately trained.
31. At the end of September 2019, the Care Provider sent Mr X a final response and signposted him to the Ombudsman. It explained while the Care Home had staff vacancies, it was adequately staffed via agency staff. It did not agree there was an issue with staff training.
32. The Care Provider apologised that its communication with the family was not satisfactory. It said it had not been able to see communications about Mr Y’s cream prescription so could not come to a finding. It said there was no record of it contacting the District Nurse about the blood test and it apologised.
33. The Care Provider clarified that discussions with staff had identified Mr Y had specifically asked the Care Home not to contact his family in March, and as he had capacity to make that decision, his wishes were respected.
34. The Care Provider explained Mr Y understood the risk he was taking in using the wheelchair as a walker and he had capacity to make his own decision. It explained it had aimed to encourage him to continue to be independent, and said no accidents occurred when Mr Y was in his wheelchair.
35. In November 2019, Mr X received a demand for fees he had not paid pending an outcome of the complaint. He paid half the outstanding amount and asked the account to be put on hold. The Care Provider refused this request and Mr X paid the remaining sum to avoid legal action.
36. The Care Provider’s records show Mr Y refused to go to hospital in March 2019 when paramedics wanted to take him there after he experienced chest pains. There is no record in the notes I have seen that he asked not to notify his family.
37. The Care Provider’s records also show that a risk assessment of Mr Y’s preference for using a wheelchair as a wheeler was recorded. The assessment noted this was a high-risk activity but also recorded Mr Y had capacity to make that decision.
38. Mr X says leaving the wheelchair in Mr Y’s room enabled him to continue in the high-risk activity and was itself a failure of care.

Analysis

Quality of care

39. The CQC guidance makes clear consent in itself cannot be relied on to provide unsafe care, but the Care Provider says it considered the risks and benefits. The statutory guidance stresses the importance of people being supported to make their own decisions, and of keeping any restrictions on their freedom to a minimum. The Care Provider has explained why it continued to allow Mr Y to use his wheelchair in this manner, and I have not seen evidence of fault in the information I have considered.
40. The Care Provider says no accidents occurred when Mr Y was in his wheelchair and its records do not show any such incidents. Mr X is not aware of any accidents having happened. Therefore, there is no injustice linked to this in any event and we propose not to investigate this matter further.
41. The Care Home failed to order Mr Y’s medical cream and arrange his blood test. However, there is no allegation this caused Mr Y any significant injustice, for example that cancer was present but not picked up soon enough. Therefore, we also propose not to investigate this matter further.

Communication

42. The Care Provider was at fault when it did not make contact with Mr Y’s family in late 2018, when the Care Home called an ambulance for Mr Y. The Care Home gave Mr X conflicting information about the incident of March 2019. It explained Mr Y’s consent was a possible reason it did not contact his family. However, on another occasion it said it would expect Mr X and his mother to be contacted in any event. This caused confusion for the family.
43. The Care Provider ultimately provided clarity after interviewing staff. It explained Mr Y had asked that the Care Home did not contact his family in March 2019. This was the occasion on which Mr Y refused ambulance transport, so despite there being no contemporaneous records I accept this explanation as accurate on the balance of probabilities. Therefore, it is not fault that the Care Home did not contact the family on this occasion.
44. The Care Home did not respond to Mr X’s request for Mr Y’s care records in April 2019. It should have explained at the time it would need Mr Y’s consent to provide these. Mr Y was still in its care at the time, so obtaining his consent would have been straightforward. Instead, the Care Provider addressed the issue in September 2019, three months after Mr Y left its care. Its delay in responding is fault. However, the Care Provider was correct to ask that the request came from Mr Y. It is open to Mr Y to contact the Care Provider, via Mr X if he needs support to do so, to request copies of records where they have still not been provided. Should he have concerns about the Care Provider’s handling of his request, it is open to him to contact the Information Commissioner’s Office.
45. The Care Provider did not provide a response to Mr X’s concerns about the admission agreement raised in January 2019. There is no allegation this led to any substantive or significant injustice. Therefore, we propose not to investigate this individual matter further. However, it is an example of the general poor communication Mr X experienced.

Record keeping and administrative procedures

46. Mr X’s concerns about incidents were compounded by the Care Home’s poor record-keeping which meant the Care Provider could not respond to his complaints properly.
47. The Care Provider did not keep records of its conversations with Mr Y about whether it should contact his family when it called ambulances for him. The admission agreement contained inaccuracies and the Care Provider did not address this when Mr X raised it. Mr X says the family had to chase invoices on several occasions
48. Where possible, we come to conclusions about what happened on the balance of probabilities. As records are missing, there remains some uncertainty about what happened, which has added to the family’s worry.

Complaint handling

49. There were significant delays in the complaints process, which the Care Provider acknowledged and apologised for. Mr X needed to ask several times before it provided a response at stage two of its procedure, as complaints were not always passed to the right person to provide a response. The stage two response was issued four and a half months after the stage one response. Mr X went to more time and trouble than would be expected in raising his complaint.
50. The Care Provider addressed and clarified most issues in the final complaint response. For example, it clarified that while earlier complaint responses were correct to say it was usually the District Nurse’s responsibility to arrange blood tests, the Care Home had told Mr X it would do so and it was therefore at fault. It recognised the Care Home’s communication had not been to a satisfactory standard, while a previous response said communication was not up to Mr X’s expectations.
51. However, the complaint responses left some questions unanswered and Mr X remained dissatisfied. For example, the Care Provider checked accident logs and confirmed no accidents happened when Mr Y was in his wheelchair. However, this was not relevant.
52. The faults outlined above caused injustice to Mr X and the care provider should recognise that as I set out in my recommendations below. That injustice was not so significant as to warrant the fee waiver Mr X suggests, however.

Agreed action

53. Within one month of my final decision the Care Provider will apologise to Mr X, and offer the sum of £250 to recognise the time and trouble caused to him in pursuing his complaint; it will offer a further £250 in recognition of the anxiety caused by the poor communication;
54. Within one month of my final decision the Care Provider will review the way it records communication and consent and provide me with the details.

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Final decision

55. The actions of the Care Provider caused some injustice to Mr X. The completion of the agreed actions in paragraphs 53 and 54 are a suitable remedy for that injustice.

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Investigator's decision on behalf of the Ombudsman