Summary: there was very poor care and treatment by the Council’s commissioned care provider HC One during the late Mr X’s stay in the care home. The Council’s safeguarding investigation found that HC One failed in multiple aspects of Mr X’s care. The Council has reimbursed Mrs X’s costs in recognition of the injustice caused. It will now offer Mrs X a further amount in recognition of the significant distress she suffered as a result of Mr X’s poor care.

The complaint

1. Mrs X (as I shall call her) complains about the poor care and treatment her late husband received at The Elms care home (commissioned by the Council). In particular she complains the care provider failed to give Mr X his medication which resulted in impaction of the bowels and consequent frequent enemas; failed to give him adequate hydration and nutrition so he became dehydrated and malnourished; did not follow Speech and Language Therapy (SALT) advice about food preparation; altered records and threatened to evict residents whose relatives complained.

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The Ombudsman’s role and powers

2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
3. 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)
4. 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

5. I considered all the information provided by the Council and Mrs X. I spoke to Mrs X. Both the Council and Mrs X had the opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

6. 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.
7. Regulation 12 says providers must ensure safe care and treatment. It says ‘Medicines must be administered accurately, in accordance with any prescriber instructions and at suitable times to make sure that people who use the service are not placed at risk.’
8. Regulation 13 says service users must be protected from abuse and improper treatment. This includes making sure people are not left lying on soiled sheets for long periods of time.
9. Regulation 14 says the nutritional and hydration needs of service users must be met.
10. Regulation 16 says care providers must investigate complaints and take necessary and proportionate action in response to any failings identified. It says ‘Complainants must not be discriminated against or victimised’.
11. Regulation 17 says records relating to the care and treatment of each person using the service must be kept and be fit for purpose.
12. 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 also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

What happened

13. Mr X became resident at the Elms care home in September 2018. Mrs X says Mr X’s care was initially funded by the Council together with a NHS funded nursing care contribution. After Mr X’s death she obtained full NHS funding retrospectively for his care. The Council was responsible for his care at the time of these events, however.
14. Mr X had Parkinson’s disease, required a mashable diet on the advice of the SALT team, and was prescribed laxatives 3x daily for a bowel condition, as well as Bisacodyl to assist bowel function. He had dementia. He was deemed to be at high risk of choking. He required assistance with eating. Mrs X says she gave the Elms a 6-page care plan for him when he entered the Elms which she says was included in the Elms’ own care plan, but later removed from his records.
15. Mrs X says staff frequently gave her husband an unsuitable diet not in accordance with the SALT team advice. She says they gave him biscuits, toast, whole chicken breasts, shredded pork and other foods not able to be mashed. She says there are only 9 entries recording assistance with food over a three-month period. In an effort to prevent carers giving him biscuits she made a notice for his room but it was confiscated by staff.
16. Mr X was prescribed supplement drinks twice daily which Mrs X says were often not given. She says there were over 100 instances when supplements were missed altogether: the care home said they gave him homemade supplements but the ingredients were not stocked at the home. She says some staff seemed unaware they were prescribed for him. She says the dietitian’s advice in September was that Mr X should weigh 63kgs; by January 2019 his weight had fallen to 47kg.
17. Mr X was at particular risk of severe constipation. Mrs X says when she saw the care home notes it was clear the laxatives were not being given (at one point they were omitted for a period of 4 weeks). The deputy manager changed the MAR chart to say the laxatives should be given ‘as required’. Mrs X says the home was resistant to keeping a bowel chart. They did not use the correct size incontinence pads for Mr X or change them frequently enough.
18. Mr X developed an impacted bowel. Mrs X says she heard the GP tell the care staff Mr X should have a maximum of 5 enemas, but he was given 9 in a 9-day period. In total she says 15 enemas were administered over a 44-day period. She says the GP instructed the care home to be cautious about giving phosphate enemas, but the care home continued to do so, sometimes leaving her husband afterwards with faeces containing caustic chemicals on his skin. She says the care staff did not tell the GP they had missed giving the prescribed medication.
19. Mrs X says the care home did not calibrate Mr X’s air mattress to his weight. It would not provide an ‘alerta’ cushion for him to sit on which would sound an alarm if he tried to stand up (he was deemed at high risk of falling). Mrs X says the deputy manager was aware of his need for the cushion when she assessed him pre-admission but then said it was ‘not company policy’ to provide one. He fell several times before the home agreed to provide a cushion but then it was not always put in place or switched on.
20. Mrs X says Mrs X’s specialist Parkinson’s nurse wrote to the care home in November asking them to ensure Mr X had supervised intake of 1-2 litres of fluids a day and kept fluids charts. Mrs X says even when the care staff kept fluid charts, which was intermittently, well over half the records showed less than 1litre fluid intake. On occasions Mr X went up to 11 hours without fluids. Mrs X says she witnessed both Mr X and other residents trying to drink out of the large water jugs on their tables as staff had not filled their glasses and they were incapable of filling them themselves.

The first safeguarding alert

21. On 7 January Mrs X contacted the Council. She said she had noticed Mr X had started to flinch away when people approached him and she was concerned something had frightened him.
22. The social work team responsible for the area spoke to the home. The senior carer told the social worker Mr X’s flinching was a sign of unmedicated Parkinson’s disease. Mrs X says she was unqualified to express this view and her statement delayed the intervention of the social work team. The carer said Mrs X had made many complaints and the home was struggling to meet her expectations. The social work team also spoke to the local safeguarding team. It was agreed that a full safeguarding enquiry was not needed but there would be more liaison between the social work team, Mrs X and the home.
23. Mrs X says the implication that Mr and Mrs X had refused medication for Mr X’s Parkinson’s was cruel and unfounded. He had a specialist Parkinson’s nurse.
24. Mrs X’s concerns about the care and treatment of her husband at the Elms were such that she engaged an independent social worker to advise her and act as a witness.
25. Mrs X made written complaints to the home. She says the reassurances she received in writing were not borne out by the carers’ practice or the care notes she saw later.
26. At the start of February 2019, the home arranged a relatives’ meeting to address Mrs X’s and other relatives’ concerns. Mrs X says the area manager told relatives they expected a standard of service they were not going to get. She says she was personally told Mr X would be evicted if she did not stop complaining.

The second safeguarding alert

27. Mr X was admitted to hospital on 18 February 2019 with sepsis and a chest infection. He had kidney failure and impacted bowels and was malnourished. Mrs X says he was so dehydrated the hospital staff could not insert a canula. She contacted the Council to raise a further safeguarding alert. She said she did not want the care home to know which ward her husband was in.
28. A social worker met Mrs X on the hospital ward on 25 February to discuss the safeguarding alert. Mrs X told her the Elms had neglected Mr X’s needs over a period of time. She said she had often visited and found him lying in urine and faeces. She said the care home was neglecting basic care such as washing, changing and giving sufficient food and drink. She said she did not want Mr X to return to the Elms after discharge.
29. Mr X was discharged to another care home (not part of the HC One group) at the beginning of March. He died on 24 March, shortly after his 74th birthday.

The safeguarding investigation

30. The safeguarding social worker obtained all the care home records pertaining to Mr X.
31. The social worker found the home had twice failed to act on Mrs X’s requests to call for medical help on the day Mr X was admitted to hospital. She found the 111-call handler was concerned about the lack of basic knowledge shown by the qualified nurse who called the service that day, who was not sure how to find out if Mr X was breathing.
32. The social worker’s report also found Mr X’s unkempt appearance on admission to hospital suggested he was not receiving proper personal care. She found failures of record-keeping as well as care, as (for example) the care home notes stated he had been given oral care over a period when he did not have a toothbrush.
33. The social worker found the home had failed to comply with Mr X’s moving and handling care plan and had failed to reposition him as required which put his skin integrity at risk. The home failed to carry out his exercise regime and failed to keep proper records.
34. The social worker found the home had failed to follow Mr X’s bowel management plan which resulted in him suffering significant distress and discomfort. The home had also failed to follow medical advice about his bowel management.
35. The report found the home had failed to meet Mr X’s nutritional needs. Its failure had placed him at risk of aspiration and had resulted in his weight loss.
36. The report also found the home had failed to meet Mr X’s hydration needs. It had led to severe dehydration. It had failed to monitor his swallowing difficulties which led to aspiration and a chest infection.
37. The social worker found the actions of some carers led to a loss of dignity for Mr X.
38. The social worker found the home had mismanaged medications. The care staff gave Mr X a drug which was not prescribed for him. Care staff gave Mrs X wrong information. They failed to follow advice, and this led to Mr X’s hospital admission with an impacted bowel. The MAR charts showed they did not give him pain relief although staff gave verbal assurances they had done.

The complaint

39. The Council sent a copy of the safeguarding report to Mrs X and to the care home. A meeting (which Mrs X attended) was held to discuss the report and consider what could be learned as a result. The Council says, “Learning was accepted in several areas around care planning, record keeping, staff training in the safe moving and handling of residents, medication management, chart recording, and effective communication with families. It was agreed with HC-One senior management that ongoing monitoring work by the Council’s Contracts Team was required to support service improvement at The Elms.”
40. Mrs X complained to the Council about the care and treatment of Mr X. She complained about the delay in starting and completing the safeguarding investigation.
41. The Council undertook a Senior Management Review (SMR) of the concerns Mrs X expressed. A senior manager met Mrs X in July 2020 and wrote to her in November with the formal response to her complaint.
42. The Council apologised to Mrs X for the delay in completing the SMR which was a result of the Covid-19 pandemic.
43. The Council upheld Mrs X’s complaint that the care provider did not provide a care plan for Mr X in a timely manner or take any notice of the records she had kept about her husband’s care. It upheld her complaint that the care provider refused to call a GP when she requested one. It upheld her complaint that the care provider did not have suitable risk assessments in place regarding Mr X’s choking risk. It agreed that record-keeping at the home was poor. It upheld her complaint that the Council had not sent her a copy of Mr X’s assessment in a timely manner.
44. The Council also upheld the complaint that a former area manager had threatened residents with eviction if relatives continued to complain. It upheld a complaint that it had not kept Mrs X updated on the progress of the safeguarding investigation but said the investigation itself was a complex one and it felt it had been completed in a proportionate way.
45. The Council also said that as a result of the poor record-keeping at the care home, it was impossible to determine some complaints – so it could not say definitely that records were falsified or that some incident which Mrs X complained about took place. It said that its Contracts Monitoring Team would monitor record keeping as part of its improvement plan with the care home.
46. Following the Council’s response to her complaint, Mrs X complained to the Ombudsman. She said Mr X had endured “prolonged suffering” at the end of his life because of the way he was treated by the care provider.

The Council’s response - Implementation of Home Improvement Plan

47. The Council implemented a Home Improvement Plan (HIP) as a result of its contracts monitoring with the Elms. It had found that service users “were not protected against the risk associated with medicines management”; call bells and requests for assistance were not answered promptly, there was a ‘variable application’ of the Mental Capacity Act, clinical risk was not managed effectively, nutrition and hydration needs were not met, complaints were not managed properly, supplementary charts (eg for food and fluids) were not kept properly, quality of record keeping was poor, and end of life care was poor.
48. The Council says publication of the HIP was followed by routine monitoring contact on a virtual basis until the Covid19 restrictions were lifted and a full monitoring visit was completed in April 2021. It identified the progress made respect of the areas of concern identified following Mrs X’s complaint.
49. The Council says that food, fluid, elimination and postural charts were now being completed appropriately and there were clear reasons given for charts being used. It says daily records were also properly kept.
50. The Council found that medication records were now being appropriately kept and a monthly audit completed.
51. The Council found that care plans were still not always of an appropriate standard and were sometimes poorly written. It says any problems are highlighted by the Clinical Services Manager until they are resolved. The Council’s Care Home Support Team have been invited into the home to continue the improvement of understanding of the Mental Capacity Act and provide more training.
52. There had been no reported concerns about moving and handling practice at the Elms in the six-month period monitored.
53. The Council reimbursed the cost of the independent social worker Mrs X employed to assist her. It says Mrs X was very clear that the principal aim of her complaint was to avoid the same things happening to another family.

Analysis

54. There were undoubtedly serious failings in the care and treatment provided by the Elms care home to Mr X.
55. The failures were potential breaches of the regulations. Those are matters for the CQC, with which we share this decision.
56. The standard of record keeping was found to be so poor that in some instances it was not possible to reach a robust decision about what had happened, but it is evident that the way in which the care provider failed in terms of provision of nutrition and hydration, mismanaged medication, and in particular failed to adhere to the bowel management plan caused Mr X significant distress.
57. There were other failings of concern in the way area managers tried to prevent complaints, threatening relatives with residents’ eviction. That showed a culture which had set its face against improvement and was willing to use fear to prevent exposure of its failures. It is significant that Mrs X did not want the care home to know which ward Mr X had been admitted to. The care provider says it has made major improvements in its complaints system since this time
58. Sadly Mr X has now died and it is not possible to remedy the injustice which he was caused by the actions of the care provider.
59. However, Mrs X also suffered considerable distress at the knowledge of how Mr X was treated by the care provider. As the Council remains responsible for the actions of its commissioned care provider, it is for it to recognise her distress by the payment of an appropriate sum now.

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Agreed action

60. Within three months of my final decision the Council will provide me with an update on the outcomes of the HIP;
61. Within one month of my final decision the Council will offer Mrs X £5000 in recognition of the considerable anxiety and distress she was caused by the actions of the care provider it commissioned.

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Final decision

62. I have completed this investigation on the basis that there was fault by the Council which caused injustice: completion of the recommendations at paragraphs 60 and 61 will remedy the outstanding injustice suffered.

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Investigator's decision on behalf of the Ombudsman