The Ombudsman's final decision:
Summary: Mrs D complained about the standard of residential care provided to her late mother, Mrs E, by the Care Provider from March 2017 to August 2019. We find the Care Provider caused an injustice when it failed to provide proper care and treatment to the late Mrs E. In addition to the remedy it has already offered, the Care Provider has agreed to our recommendations to issue Mrs D with a further apology and implement service improvements to ensure the problems do not reoccur.
- Mrs D complained about the standard of residential care provided to her late mother, Mrs E, by the Care Provider from March 2017 to August 2019. She says the Care Provider neglected Mrs E and its actions have caused immeasurable pain and upset for the entire family.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission.
How I considered this complaint
- I considered information Mrs D submitted with her complaint. I made written enquiries of the Care Provider and considered the information it provided in response. I have also considered a safeguarding report produced by the local council when it investigated Mrs D’s concerns.
- Mrs D and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Care home regulation and guidance
- The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
- 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
- Regulation 9 says care and treatment must be appropriate and meet service users’ needs.
- Regulation 10 says service users must be treated with dignity and respect.
- Regulation 12 says care and treatment must be provided in a safe way for service users.
- Regulation 14 says service users should have adequate nutrition and hydration to sustain life and good health.
- Regulation 17 says care providers should maintain an accurate, complete, and contemporaneous record in respect of each service user.
- Regulation 20 requires care providers to be open and transparent when things have gone wrong. As soon as the care provider becomes aware of a safety incident, it must tell the person or their relative; provide reasonable support, advise them of any further enquiries, keep a written record and apologise.
Capacity and best interest decisions
- The Mental Capacity Act 2005 applies to people who make lack mental capacity to make certain decisions.
- A key principle of the Mental Capacity Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
Lasting power of attorney (LPA)
- This is a legal document that lets a person appoint one or more people to help make decisions or make decisions on their behalf. There are two types of LPA: ‘health and welfare’ and ‘property and financial affairs’.
- Mrs E was a resident at the Care Provider’s care home, Gittisham Hill House, from March 2017 to August 2019. Mrs E sadly died in September 2019.
- Mrs D and her family raised concerns about quality of the care provided to Mrs E regularly from March 2017 to August 2019. Mrs D held a health and welfare LPA for Mrs E.
- Mrs D made a safeguarding referral to the council in May 2019. She said the Care Provider:
- Failed to tell Mrs E’s GP or the family when she refused to have medication.
- Provided Mrs E with the wrong medication.
- Left Mrs E for several days without personal care.
- Did not contact her or the family when it was struggling to care for Mrs E.
- Stopped administering prescribed cream and failed to tell the family.
- Stopped giving Mrs E her inhaler without the family’s consent.
- Failed to follow Mrs E’s care plan.
- Gave the family false assurances the care would improve.
- The council investigated Mrs D’s concerns. It collated its findings in a summary report. It shared its summary report in the initial safeguarding meeting in August 2019. It found:
- That despite several face-to-face meetings over two years, the same issues were persisting.
- The Care Provider failed to give information about Mrs E’s care to all its staff.
- The Care Provider was not following Mrs E’s care plan.
- Care staff offered medication instead of administering it.
- The Care Provider was not responding to known health issues in a timely manner.
- Between March to December 2017, the Care Provider carried out personal care 26 times. Mrs E declined personal care 77 times. This left 163 unaccounted for. On the days that personal care was declined, it was not clear whether it was offered again.
- Mrs E refused food and fluids, but there was no evidence of escalation or how it was followed up. Mrs E refused food and fluids for five days with no strategy in place how to escalate it.
- The council identified several learning points for the Care Provider to action from the initial safeguarding meeting. This included:
- Care staff to contact Mrs E’s family if she refused personal care and medication for more than three days.
- Care staff to ensure they were following Mrs E’s care plans consistently.
- Care staff to escalate any concerns with the relevant professionals.
- Care staff to complete oral hygiene daily.
- Care staff to offer alternative food and fluids to Mrs E.
- Mrs D moved to a different care home at the end of August 2019. She sadly died at the beginning of September 2019 and therefore the matter did not progress to a safeguarding review meeting.
- Mrs D made a detailed complaint to the Care Provider about the failings in Mrs E’s care in November 2019. The Care Provider responded in December 2019. It said it reviewed Mrs E’s care plans monthly and provided staff with the information they needed. It also said its staff made every effort to communicate with Mrs D and her family. Finally, it said its care staff contacted the District Nurses if they had any concerns. It apologised for any distress caused to Mrs D. It also said, “Based on the evidence that I have reviewed and taking into account the outcome of the safeguarding meeting and home’s CQC rating, I do not feel that recompense should be forthcoming”.
- Mrs D was dissatisfied with the Care Provider’s response and referred her complaint to stage two of its complaints procedure. She said it failed to address all her concerns. She also said it had failed to properly review the council’s safeguarding investigation which said Mrs E had suffered significant harm over a two-year period. She asked it to refund the care fees Mrs E paid, apologise for the distress the whole family had suffered and implement service improvements.
- The Care Provider responded in March 2020. It apologised unreservedly for the failings in its care and for any distress Mrs D suffered. It offered £5,000 to resolve the complaint. Mrs D responded and said it should be refunding £127,130 for the care Mrs E did not receive. She also said it had failed to grasp the importance of her complaint and it had not explained what measures it was putting in place to ensure the same problems did not happen again.
- The Care Provider issued its final response to Mrs D’s complaint in April 2020. It said it could not provide any further answers to the questions she raised and so referred her to the Ombudsman for an independent review.
- The Ombudsman cannot investigate late complaints unless there are good reasons to do so. A late complaint is when someone takes 12 months to complain to us about something a care provider has done. Mrs D was aware of some of the failings in the care provided to Mrs E from March 2017. She did not refer her complaint to the Ombudsman until July 2020. I will exercise discretion to investigate Mrs D’s complaint from March 2017. This is because it was not until the council completed its safeguarding investigation in August 2019 that she realised the full extent of the injustice Mrs E suffered. Mrs D then complained to the Care Provider in November 2019 and did not receive its final response until April 2020.
- Even though the events go back to March 2017, I have decided it is appropriate to investigate Mrs D’s complaint because I have received sufficient evidence from the Care Provider to be able to reach a robust decision. I am also satisfied I can achieve a meaningful remedy for Mrs D, despite the passage of time.
- Mrs D says Mrs E was left with dirty skin conditions, long toenails, and unhealthy teeth. She says the Care Provider consistently failed to provide Mrs E with personal care.
- Mrs E’s care plan in March 2017 said she could not carry out her personal care needs, and she needed help. Her care plan was updated in July 2017 and it said that staff would need to encourage her to have personal care because she would often refuse. Her care plan was further updated in October 2017 and it said that if Mrs E declined all care, the nurse in charge should decide whether contacting the family was appropriate.
- When the council completed its safeguarding investigation, it said between March to December 2017, personal care was carried out on Mrs E 26 times and declined 77 times. This left 163 unaccounted for. I have reviewed the daily records and agree with the council’s view. It is also not clear in the daily records whether personal care was offered again at a different time after Mrs E’s initial refusal. The Care Provider failed to follow Mrs E’s care plan and she suffered unnecessary harm.
- Mrs D and her sisters met with the Care Provider in November 2017 and they expressed concerns it was not meeting Mrs E’s personal care needs. The Care Provider agreed to alert Mrs D and her family if Mrs E was refusing care.
- The daily records from January to May 2018 show that Mrs E regularly declined personal care and there is often no evidence to suggest whether this was followed up later. There are many days where the personal hygiene records are blank and so it is not clear if care staff carried out personal care on those days.
- Mrs D had a meeting with the Care Provider in June 2018. She said she did not want to be contacted when Mrs E refused personal care and she wanted staff to act in Mrs E’s best interests. Despite this, the personal hygiene records do not reflect that personal care was carried out every day as it should have been. The records show that Mrs E refused dental care for weeks. I have seen no evidence that the Care Provider raised this with Mrs D.
- Mrs D met with the Care Provider in January 2019 and said she still had concerns it was not meeting Mrs E’s care needs. The Care Provider agreed that it would give Mrs E daily personal care and it would act in her best interests. It also agreed that the nursing staff would oversee her personal care. I have reviewed the records after the meeting and there are still occasions when Mrs E refused personal care and is it not clear if it was offered later.
- Mrs E’s care plan from March 2017 said the Care Provider should make sure she received the appropriate medication at the right time.
- Mrs E’s GP prescribed her medication that she should not have had in April 2017. The Care Provider did not realise this mistake and administered the medication. Mrs D realised this mistake in May 2017 because she noticed Mrs E was having a negative reaction to the medication. The Care Provider immediately stopped the medication when it became aware. Mrs E suffered unnecessary pain because of the mistake.
- The council’s safeguarding report says the Care Provider offered Mrs E medication rather than administering it and this left her in unnecessary harm. I have reviewed the medication administration records and I agree with the council’s view. The records show Mrs E regularly refused medication, but then she later complained that she was in pain. I have seen no evidence the Care Provider raised Mrs E’s regular refusal of medication with Mrs D.
- Mrs D contacted the Care Provider several times in 2018 and raised concerns about Mrs E’s pain management. She said when she visited Mrs E she was often in pain.
- The Care Provider updated Mrs E’s care plan in December 2018. It said if she refused medication, care staff should try again later. If she continued to refuse, medication should be destroyed, and care staff should inform her GP. If Mrs E refused for three days, then care staff should inform Mrs E’s daughters. The Care Provider also assured Mrs D in a meeting in January 2019 that its nursing staff would oversee the administration of Mrs E’s medication.
- Despite the updated care plan and the reassurances from the Care Provider, the records show that Mrs E continued to refuse medication and it not always clear whether this was offered again as it should have been.
- Mrs D and the Care Provider attended a continuing health care (CHC) meeting in May 2019. CHC is a care package for people who are not in hospital. It is funded by the NHS. Mrs D complained the Care Provider stopped giving Mrs E her inhalers but failed to consult the family. Mrs D says this ultimately contributed to Mrs E’s death.
- The Care Provider said it communicated with Mrs E’s GP when the decision was made to stop her inhalers. However, as Mrs D held a health and welfare LPA for Mrs E, it should have also communicated with her and involved her in the decision-making process. It would have caused avoidable upset when Mrs D found this out, and understandably has led her to question what the long-term impact was on Mrs E’s health.
- Mrs D says the Care Provider left Mrs E starving. Mrs E’s care plan from March 2017 said she needed to have a well-balanced diet and needed encouragement to eat. The care plan also said she could not eat large portions or food and that care staff should complete food and fluid charts.
- In July 2017, Mrs D met with the Care Provider and raised concerns about Mrs E’s diet. The Care Provider agreed to monitor her food intake. She met with it again in November 2017 and complained it was giving Mrs E food she did not like. It agreed to update her file with food she liked and disliked.
- Mrs D’s sister complained to the Care Provider in early February 2018 it was still giving Mrs E food she did not like. The Care Provider accepted issues with its care staff completing the food and fluid charts.
- The council concluded that between December 2017 to August 2019, food and fluids was recorded as refused, but there was no evidence of escalation or how it was followed up. This happened on several occasions. Mrs E refused food and fluids for five days with no strategy in place how to escalate it.
- I have looked at the food and fluid charts and I agree with the council’s view. There are many occasions when Mrs D refused food and the records are not clear what alternatives they offered her and what encouragement they gave her. This means the Care Provider failed to adhere to Mrs E’s care plan and she did not get the nutrition she needed. This was after the Care Provider assured Mrs D it would supervise Mrs E at mealtimes and its nursing staff would monitor all areas of concern regarding her diet.
- I have also seen several examples of care staff giving Mrs E food which Mrs D had previously told them she did not like. The Care Provider failed to update its records and Mrs D suffered as a result.
- When the Care Provider responded to Mrs D’s complaint, it apologised to her and offered £5,000 to resolve her complaint. Mrs D disagreed with the remedy. She said the Care Provider had not confirmed it had learnt any lessons or shown accountability for its actions.
- It is clear the Care Provider’s actions caused an injustice to Mrs E when she was alive. She suffered unnecessary harm over two and a half years. However, as she has sadly died, we cannot remedy her injustice.
- Mrs D and her family witnessed the unnecessary harm Mrs E suffered. The evidence shows that Mrs D and her sisters repeatedly raised concerns with the Care Provider, but things did not improve. The Care Provider failed to implement the agreed action points from meetings, failed to include Mrs D in about important decisions about Mrs E’s care and did not keep Mrs D properly informed when Mrs E refused medication or food.
- I also have concerns with the Care Provider’s initial response to Mrs D’s complaint in December 2019. It said that it could not offer a remedy because it had considered the outcome of the safeguarding meeting. However, the council recommended several learning points for the Care Provider to implement after the initial safeguarding meeting. The council’s view was that the Care Provider was not consistently following Mrs D’s care plans, the care records were inconsistent and care staff did not implement strategies when Mrs D refused food and fluids and personal care. Therefore, the Care Provider’s initial response to Mrs D's complaint caused unnecessary confusion and failed to account for the recommendations of the initial safeguarding meeting.
- The Care Provider’s apology and offer of £5,000 goes some way in remedying the injustice Mrs D and her family have suffered. I appreciate Mrs D disagreed this with this. However, the Ombudsman’s guidance on remedies says in cases where a person’s distress is severe or prolonged, a payment of up to £1,000 may be justified. In exceptional cases, we may recommend more than this. The Care Provider’s offer of £5,000 is therefore more than we would normally recommend.
- The Care Provider also needs to implement service improvements to ensure the same problems do not reoccur. I also recommend it should make a further apology to Mrs D for its initial response to her complaint.
- To remedy the injustice caused, by 27 April 2021 the Care Provider has agreed to:
- Pay Mrs D the £5,000 it offered in its complaint response.
- Apologise to Mrs D for the upset caused in its initial response to her complaint.
- By 26 June 2021, the Care Provider has agreed to explain in writing what lessons it has learnt from this investigation and what action it will take to ensure the same mistakes do not happen again. This must include how it will ensure:
- Relevant staff are aware of the importance of adhering to care plans and regularly updating a service user’s care plan when changes are agreed.
- Relevant staff are aware of the importance of recording accurate and complete records.
- Relevant staff are aware of the importance of communicating with a service user’s family when things go wrong and involving a service user’s family when making any changes to the delivery of their care.
- Relevant staff are aware of what they should do if a service user consistently refuses to eat and drink.
- Relevant staff are aware of what they should do if they are unable to administer a service user’s medication for any reason.
- I have completed my investigation and find the Care Provider’s actions have caused an injustice. It has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman