Summary: Mr X complained about Mrs Y’s experience in the Laurel Care Home and said she was overcharged and bullied during her short stay. Mr X would like Mrs Y to receive a refund. We found the Care Provider was not at fault.

The complaint

1. The complainant whom I shall refer to as Mr X, complained that when his mother, Mrs Y, moved to Laurel Care Home, Laurel Care Home Limited (the Care Provider):
• was not transparent about costs.
• inappropriately shared personal information.
• bullied Mrs Y and tried to force her to stay permanently.
• did not respond adequately to Mr X’s complaint about this.
2. Mr X would like the Care Provider to charge the correct amount and refund the excess paid by Mrs Y. Mr X said Mrs Y complained to him about staff bullying her and said the Care Provider tried to ensure Mrs Y stayed long term. He said staff used aggressive behaviour to subdue Mrs Y when she was difficult.

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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. 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)
5. 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). In this case, we consider Mr X a suitable person to complain on Mrs Y’s behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I will send both parties a copy of my draft decision for comment and will take account of the comments I receive in response.

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What I found

Background

Pressure sores

8. Pressure sores (also called pressure ulcers or bed sores) are wounds caused by pressure on part of the body interrupting the blood supply to the skin. People with mobility difficulties and who are over 70 are more at risk.
9. Under the European Pressure Ulcer Advisory Panel classification system, pressure sores are graded in severity from 1 to 4. Grade 1 indicates the first signs of pressure damage; including redness, discolouration, swelling or heat but with intact skin. Grade 2 is usually an abrasion or blister and involves a partial thinning of the skin. Grade 3 involves full loss of skin thickness with damage to, or death of, the underlying tissue. Grade 4 indicates severe pressure damage, usually a deep wound that may go down to the bone and involve the death of underlying tissue.

Powers of attorney

10. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose who will make decisions about their health and welfare and/or their finances and property, when they become unable to do so themselves. The 'attorney' is the person who will make decisions on their behalf. Decisions made by the attorney must be in the person’s best interests.
11. There are two types of LPA:
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Funded nursing care (FNC)

12. The NHS is also responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).
13. In October 2007, a single rate for the provision of NHS-funded nursing care was introduced, replacing the previous three-band system for NHS-funded registered nursing care. All individuals moving into a care home with nursing after that date will usually receive a single rate payment if they have nursing needs.

Best interests

14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
15. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
16. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.
17. The Mental Capacity Act Code of Practice says that in trying to decide what is in the person’s best interest, the person deciding should consult others. It lists the people the person deciding should try to consult; the list includes “close relatives, friends or others who take an interest in the person’s welfare”.

Deprivation of Liberty Safeguards (DoLS)

18. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The 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 to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home, hospital to apply for authorisation. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice.
19. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
20. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the MCA 2005. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty. The application for authorisation should be made within 28 days.

The Care Quality Commission (CQC)

21. 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.
22. The CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.

What happened

23. Mrs Y had dementia and lived at home. She was fully mobile and had care workers visit each morning and ready meals delivered. Mrs Y’s daughter, Mrs Z, visited often and helped her.
24. In September 2018, Mrs Y’s GP referred her to the local mental health team as she was refusing help and causing danger to herself particularly around food. She was unable to use the microwave to heat the meals safely and had lost weight. The mental health team visited and found Mrs Y did not understand her care needs and was at medium risk of harm to herself. Mrs Z reported that she had not left the house in nearly six months and rarely washed her hair. She would also call Mrs Z in the night on occasion because she slept during the day and was confused about the time. Mrs Z arranged for the care workers to visit twice a day. The mental health team discharged Mrs Y.
25. In May 2019, Mrs Y fell and broke her shoulder. While she was in hospital, Mr X says she was the happiest he had seen her in years. When the hospital planned to discharge her home, he was concerned. He planned a respite stay in the Laurel Care Home where Mrs Z could visit her daily and Mrs Y would have time to recover her physical strength.
26. The Laurel Care Home is run by Laurel Care Home Limited (the Care Provider). In early June, Mrs Z enquired about a place there for Mrs Y and went to view the home. It had a room available and said it would charge £156 per day based on the information provided. Mr X understood it was £146 per day. It noted that Mrs Y had lost confidence and didn’t want to do anything but could walk with lots of encouragement. It also noted that she had a sacral sore but it did not know what grade. Mrs Y also had her arm in a sling because of her shoulder injury. Mrs Z advised that Mrs Y did not mix or socialise and would not like activities, entertainment, aromatherapy or massage; she would probably stay in her room.
27. The following day, the Care Provider visited Mrs Y in hospital to assess her and offered her a place at £200 per day. The Care Provider noted it was for four weeks initially with a possible extension to permanent. It says it discussed the details with Mrs Z and the cost reflected that Mrs Y’s care needs were more intensive than first thought given the sacral sore was grade 3. It also noted the need for 1-2 staff to help her mobilise as she was unable to do this unassisted. Also, she needed constant supervision around eating and drinking. Mrs Y was eligible for FNC so this was added to the fee.
28. Mrs Y had given Mr X powers of attorney for both health and welfare, and property and finance. So, as she was not able to decide about her care or finances, he was responsible for signing the contract. He says he felt he had no other option but to accept and agreed three weeks with the option of an extra week. In addition to the contract, the Care Provider included a payment schedule which detailed eight months of payments. Mr X crossed this out and corrected it to read three weeks plus the option of a further week. He then signed the schedule, but he felt the Care Provider had tried to tie him in to a longer term than he planned. The Care Provider says it drafted the schedule of payments to reflect the possibility that she might stay longer; it was not binding. It apologised to Mr X for any confusion it caused.
29. Mr X was concerned about the increase in the cost from his initial enquiry to £200 per day, so he telephoned the Care Provider to ask about it. He says the Care Provider told him it was because Mrs Y had a grade three pressure sore. He says when he asked about the fees reducing if it got better, the Care Provider told him pressure sores never go away so the fees would not reduce.
30. Mrs Y arrived at Laurel Care Home in mid June; she was confused and could not understand why she was not taken home. Staff noted they reassured her and tried to help her settle. The following day, the GP visited Mrs Y as she was a new patient. The Care Provider’s records note that Mrs Y was unsettled and unhappy, and insisted she wanted to go home although at times she was fine. On the third day, Mrs Y remained upset and felt she was able to manage at home. The Care Provider’s records note that she had not opened her bowels for two days. The Care Provider called Mr X and Mrs Y spoke to him. She was extremely angry and wanted him to take her home immediately. Mr X explained to Mrs Y that it was just for a short time while she got better, but she was still angry the following day.
31. On the fourth day, Mr X told the Care Provider Mrs Y would be leaving. The Care Provider applied to the local council for a DoLs authorisation as it was clear Mrs Y did not consent to being in the home and she was not free to leave. Staff contacted the GP because Mrs Y was so agitated and asked for a referral to the mental health team. The GP completed a referral and prescribed some Risperidone for Mrs Y to help with the agitation. When Mr X’s daughter visited, she was upset to see her grandmother so distressed. The Care Provider told her the GP had prescribed some medication for Mrs Y. Later, Mrs Z sent Mr X an email which mentioned the prescription. Mr X was angry because he felt the Care Provider should not have shared this information with his daughter who had passed it on. He was also unhappy about the DoLs application. The following day the Care Provider raised a safeguarding alert because it was concerned about Mrs Y returning home as it understood Mr X intended. Mr X was unhappy about that too. He said the Care Provider should not have taken these actions without his authority as attorney.
32. The Care Provider says it cooperated fully with the three care providers who came to assess Mrs Y.
33. Throughout her 17 day stay, the Care Provider’s records note occasional bowel movements, and occasional use of Lactulose and Senna. Mrs Y often refused food and drink and the Care Provider offered alternatives and encouraged her often without success, particularly in the last week of her stay. Mrs Y lost a relatively significant amount of weight during her time at the home.
34. Mrs Y moved to another care home at the end of June. By now she was able to walk from her bedroom to the communal room with light assistance from a care worker and her pressure sore had improved to level 1.
35. Six months later, Mr X complained to the Care Provider. The Care Provider says it had a major outbreak of the COVID-19 virus, with many members of staff affected. This affected the Care Provider’s response to Mr X, and it did not respond as quickly as it would have done in normal circumstances.

Did the Care Provider cause injustice?

Costs

36. The Care Provider was only able to provide an estimate of the cost until it assessed Mrs Y’s care needs. At that point, it advised that the cost would be £200 per day. Mr X did not have to accept that cost. I found no fault here.

Personal information

37. The Care Provider was obliged to apply for a DoLs authorisation as soon as it was clear that Mrs Y was not able to consent to her stay and it did this. This involved applying to the local council and it was required to share personal information for this purpose.
38. The Care Provider also has a responsibility to raise a safeguarding alert if it believes someone is not acting in a person’s best interests. It alerted the council to the possibility that Mrs Y could be returning home where it felt she would be unsafe. This is not inappropriate sharing of information and does not require the attorney’s authorisation.
39. In respect of the information shared with Mr X’s daughter, I do not consider this was inappropriate. Mr X’s powers of attorney give him responsibility for making decisions on Mrs Y’s behalf, they do not remove other family members’ right to information. In fact, Mr X’s powers require him to act in Mrs Y’s best interests and in doing so, he should consult with the others in her life. Mr X’s daughter could see Mrs Y was clearly unwell and wanted to know she was being looked after. She had a legitimate interest and this was not sensitive information. Mr X could have asked the Care Provider not to share information with other family members if it had been in Mrs Y’s best interests. He had not done so. I found no fault here.

Bullying

40. Mr X and Mrs Z disagreed about the likelihood of Mrs Y needing permanent residential care. The Care Provider took information from Mrs Z as she was the main contact, and this clearly referred to a short term stay possibly leading to permanent residency. I do not consider the actions it took were indicative of any intention to force Mrs Y to stay at the home but took into account its understanding that she might.
41. Mrs Y had dementia and had been placed in Laurel Care Home against her will. She was angry and distressed by the move and the Care Provider had to care for her despite this. This was not a pleasant situation for either Mrs Y or the Care Provider and Mrs Y was likely to perceive this as bullying to some degree. However, I saw no evidence to suggest Mrs Y was bullied. If Mr X’s concerns about Mrs Y being bullied and forced to stay at the home, had been significant, I would have expected him to raise concerns at the time. However, he did not raise the concerns until several months later. On the balance of probabilities, I consider it unlikely that Mrs Y was bullied.
42. This was a difficult time for Mr X taking responsibility for placing his mother where she did not want to be. It is clear the relationship between the Care Provider and Mr X was not successful. But I cannot say the Care Provider could have done anything more than it did to improve this.

Complaint response

43. Mr X made his complaint in July 2020 during the disruption caused by the COVID-19 pandemic. The Care Provider was unable to operate in the usual way and delayed dealing with Mr X’s complaint. This could not be avoided under these exceptional circumstances and I find no fault here.

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Final decision

44. I have completed my investigation and do not uphold Mr X’s complaints that the Care Provider:
• was not transparent about costs.
• inappropriately shared personal information.
• bullied Mrs Y and tried to force her to stay permanently.
• did not respond adequately to Mr X’s complaint about this.

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Investigator's decision on behalf of the Ombudsman