Summary: Ther was fault in the way the Home assessed Miss C’s risk of falls, its care planning and its actions after Miss C suffered two falls. The Home also did not properly respond to Mrs B’s complaints. The Home has agreed to apologise to Mrs B and pay her £350.

The complaint

1. Mrs B complains on behalf of her aunt, Miss C, who has passed away. She complains about Trecarrel Care Home in Tywardreath, Cornwall.
2. She says the Home failed to properly assess Miss C’s risk of falls before Miss C moved to the Home. She says the Home failed to take appropriate action after Miss C had a fall on 18 December and 21 December 2019 and the Home did not fully respond to her complaints.

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What I have investigated

3. I have investigated Mrs B’s complaint about the Home’s actions in relation to Miss C’s care planning and its complaints process. Mrs B also made a complaint about the Home’s evidence at the Coroner’s hearing and a complaint about the CQC. Paragraphs 82 and 83 explain why I have not investigated these complaints.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

7. I have discussed the complaint with Mrs B and I have considered the documents that she and the Home have sent and the relevant law, guidance and policies. I have considered the Home’s and Mrs B’s comments on the draft decision.

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What I found

Law, guidance and policies

Mental Capacity

8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves.
9. The principles of the Act are:
• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because they make an unwise decision.
• Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Assessment of mental capacity

10. An assessment of someone’s capacity is specific to the decision to be made at a particular time. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

CQC standards

11. The Care Quality Commission (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.
12. 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 those standards which says:
• The care and treatment must be provided in a safe way for service users. (regulation 12).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17).

Falls Prevention and Risk Policy

13. The Home’s falls prevention and risk policy says each resident has a full risk assessment conducted at the time of admission which includes their risk of falls. The assessment includes:
• Any history of falls.
• Any medical factors.
• A full assessment of the person’s mobility.

Accident and Emergencies Policy

14. The Home’s accident and emergency policy said:
• All accidents and incidents involving injury to staff or residents are reported and recorded, no matter how minor.
• All reported accidents or incidents are fully investigated.
• The results and recommendations from investigations are fully implemented to prevent any reoccurrence of such incidents.

Complaints policy

15. The Home’s complaint policy says:
• The Home should acknowledge a complaint within two days and respond to a complaint within 28 days.
• Complaints should be dealt with promptly, fairly and sensitively with due regard to the upset and worry that they can cause to residents.

What happened

16. This is a summary of what happened from the records I have seen.
17. Miss C moved into the Home on 12 December 2019. The Home carried out a pre-assessment of her needs, but has not sent me a record of the assessment.

Care plan

18. The Home sent me Miss C’s care plan which was dated 29 January 2020. The introduction to the plan said:
• Miss C had Parkinson’s disease and Parkinson’s dementia.
• Miss C was able to mobilise by herself but ‘carers must supervise her as much as possible when she was mobilising due to a high risk of falls as a result of Parkinson’s.’
• Miss C should have a pressure mat in her room as she may forget to use the call bell.
19. In the mobility section, the plan said Miss C’s level of need was moderate and said that:
• Staff had to encourage Miss C to use the call bell if she intended to mobilise so that staff could be there to supervise her whenever she was mobilising in the Home.
• ‘The pressure mat must be placed in front of [Miss C] so that if she forgets to use the bell, we will be made aware that she is mobile within her room.’
• When Miss C was mobilising, staff must supervise as much as possible and had to encourage Miss C to use the handrails along the corridors. This would help with her balance and it was acknowledged it was difficult for Miss C to use a walking aid because of the tremor in her hands and an issue with her left arm and hand.
• If staff noticed any issues in terms of mobility, they should inform the senior on duty, record it on care control as a health issue with a daily review frequency.

Fall on 18 December 2019

20. The daily records said that on 18 December 2019 Miss C was found on the floor at 19:45: ‘red marks on her back, will monitor through the evening’.
21. Miss C was seen at 21:00, 01.05, 02.10, 02.17, 04.35, 09.57. The staff did not fill out an incident record or contact Miss C’s family.

Falls risk assessment

22. The Home carried out a general risk assessment, a falls risk assessment and a moving risk assessment on 19 December 2019.
23. The Home has sent me a copy of the falls risk assessment. The form asked the assessor to tick boxes and assigned a score to each box. The full score was automatically generated via a computer and corresponded to a falls risk assessment of low, medium, high or very high.
24. I note that the form did not include Parkinson’s disease as a risk factor, nor did it include ‘poor balance’. I also note the that the assessor did not tick the box for ‘history of falls’ on Miss C’s form.
25. Miss C’s fall risk assessment form stated that she was at ‘medium’ risk of falls.

Fall on 21 December 2019

26. Miss C had a second fall on 21 December 2019 at 09:30.
27. The daily records said a member of staff who was doing the medication round, noticed Miss C lying on the floor outside of her room shouting for help.
28. The incident report said: ‘[Miss C] communicated that she had pain in her hip. Myself and two other staff members hoisted [Miss C] safely to the chair in her room.’ The staff then gave Miss C paracetamol for the pain and called an ambulance. The note said: ‘[Miss C] unable to stand.’
29. The incident report said that, as follow-up actions, staff had to notify family members and inform management of what happened. The staff called Mrs B to inform her of what happened. The ‘recommendations to avoid similar incident’: ‘None’
30. Miss C was taken to hospital where she was diagnosed with a broken hip.
31. The care records showed that, in the following weeks, the home completed a ‘care review’ of Miss C on 24 January 2020 and 29 January 2020.
32. Sadly, Miss C’s condition deteriorated over the following weeks and she died on 2 February 2020.

The complaints and responses

33. Mrs B contacted the Home on 21 December 2019, as soon as she found out about the fall. The following is a summary of her initial email correspondence with one of the managers.
34. Mrs B wanted to know why the Home did not call her about the first fall and wanted all the documents relating to falls risk and the incidents. She said Miss C had only been at the Home for eight days and had two falls during that time. In later correspondence she questioned the invoice of £6,000 the Home had sent her.
35. The Home said:
• It did not contact Mrs B as it had the wrong number for her.
• ‘As long as [Miss C] is mobilising, there will always be a high risk of falls due to the nature of her condition. The only way to minimise the risk of falls is to take away her mobility and transfer her from a to b in a wheelchair. Whilst that will minimise the risk, it will disable her.'
• ‘[Miss C] had an accident that was not down to environment or any act of omission on the part of Trecarrel. She was having falls whilst she was at home with one to one care which her friend informed me of. We are not liable for any element of her having either accident…we will not be revising the invoice.’
• ‘Her friend told me that the whole reasons for [Miss C] coming to Trecarrel was because she was experiencing regular falls at home.’
• ‘[Miss C] had access to a call bell, did not press it to ask for any assistance, mobilised and fell. There are handrails throughout the home along which [Miss C] did not attempt to use.’
• ‘Once [Miss C] finished breakfast, she made the choice to mobilise without asking for assistance.’
• The falls risk assessment form calculated the risk level automatically, but her needs were described in full in the care plan.
• ‘The greater the environment, the greater the risk, especially where cognitive impairment exists. She had a pressure mat which alerted us that she was mobilising but it can take staff a few minutes to attend if they are assisting another one of our residents… If you felt that she needed one to one care then you should have stated this and I would have advised you to keep her where she was.’
36. Mrs B made a formal complaint on 17 January 2020. Her complaints were:
• The failure to notify the family after the first fall. None of the family were notified and the Home had their contact details. The family spoke to staff at the Home on 19 and 20 December on other matters.
• The falls risk assessment which said Miss C’s risk of falls was ‘medium’ was inadequate as it did not take into account the relevant risk factors, like Miss C’s history of falls and her Parkinson’s. The score was generated by a computer programme.
• The care plan contradicted the risk assessment as it said Miss C was at high risk of falls.
• The dates of the plan and the assessment were after Miss C’s admission. The documents should have been completed before or on the day of admission.
• The staff’s actions after the second fall went against first aid advice and may have exacerbated the injury.
• The inadequate response to her earlier emails which seemed to blame Miss C for her falls and dismissed the concerns.
• She wanted to see the evidence that Miss C did not use the call bell on the days when the falls happened.
• She wanted to know whether Miss C’s alert mat was activated on the days when the falls happened.
37. The Home did not respond until 3 July 2020. It is my understanding the Home responded after the CQC became involved in June 2020. The Home said:
• Mrs B was not contacted after the first fall as staff did not regard it as worrying or concerning.
• In response to the complaint that Miss C should not have been moved after the second fall, he said: ‘If Miss C had informed staff that she was in pain, then there should have been no attempts to transfer her and the correct course of action would have been to give paracetamol (which happened) and await the paramedics for advice (which appears not to have been the case).’
• ‘We cannot eliminate every risk and [Miss C] who had mental capacity, chose to try to mobilise independently and a fall resulted leading to hospitalisation. There is no blame attached to [Miss C] and I am amazed that you should have been left with such an impression.’
38. On 16 July 2020 the Home’s director said:
• ‘The individual’s risk for falls is assessed with a particular risk assessment, the Falls Risk Assessment which was done for [Miss C] on 19 December. I have stated that it is confusing to read high risk in the introduction of the care plan but this is incorrect.’
• ‘The care plan identified ‘mobility’ as moderate risk with moderate implying that [Miss C] required the support of walking aids such as a stick or a frame.’
• Miss C had mental capacity and chose to mobilise independently.
• ‘Your conclusion that the first fall was a warning, an opportunity to review measures in place and to take action to prevent the serious fall on 21st implies that the opportunity was ignored with fatal consequences for your aunt. We do not accept such a conclusion. There is no evidence whatsoever that this incident could have been a specific precursor to the fall on the 21st.’
• In relation to the care workers’ decision to hoist Miss C after her second fall, he said: ‘The only thing I can add is that [Miss C] had mental capacity and was insistent to the carers that she wished to be moved to her chair despite informing that she had hip pain. The staff had the appropriate training in First Aid and Manual Handling. Their usual response would have been to leave [Miss C] on the floor, make her comfortable and wait for the ambulance. However, they responded to [Miss C’s] wishes.’

Coroner’s inquest.

39. Miss C’s death was subject to a Coroner’s inquest.
40. Coroners are independent judicial officers who investigate deaths under certain circumstances. The Coroner decides whether an investigation is needed. Mrs B said the Coroner investigated Miss C’s death because it happened within six week of surgery.
41. The Coroner’s findings may be critical of what happened but the Coroner cannot blame individuals or organisations or find them responsible for the death. That will be for the criminal court or civil courts.
42. The Coroner said the following in Miss C’s inquest hearing:
• The Home did no carry out a proper risk assessment at the time of admission and this was not acceptable.
• He was concerned that the Home’s initial assessment appeared to have omitted significant conditions and underestimated the risks Miss C faced. It appeared that insufficient weight had been attached to Miss C’s history of previous falls or the diagnosis of Parkinson’s. He said that someone who had a history of falls, and a diagnosis of dementia and Parkinson’s, had an obvious risk of falling and that risk, while it could not be removed, had to be reduced as low as possible.
• He did not accept that completing a care plan a month after the fall that led to a death was an adequate substitution for a risk assessment. The risk assessment should have been done at the time of admission and amended when there was a significant event like a fall.
• The initial incident on 18 December was not classified as a fall and that was an error of judgment.
• He told the Home this was an opportunity to learn lessons and he looked forward to the receipt of further documentation and new procedures.
43. The Coroner concluded that Miss C’s death resulted from an accident. Miss C got up deliberately and intentionally and subsequently suffered a fall.

CQC

44. Mrs B asked the CQC to investigate her complaint.
45. The CQC explained to Mrs B that the CQC did not investigate complaints by individuals about care services. That was the role of the Ombudsman. The CQC looked at a care provider’s performance overall. It did have a role to play in prosecuting cases where there was evidence that failure to provide safe care led to people experiencing avoidable harm. However, this would need to be proven to the criminal standard of ‘beyond reasonable doubt’ and the CQC said there was insufficient evidence of this in Miss C’s case.
46. The CQC said that the service’s first aid policy provided guidance about not moving people until they had been fully assessed for injuries. The staff had been trained in first aid, but hoisted Miss C to a chair. The CQC said this was not in line with the first aid training or the first aid policy, but could not say that this caused further injury or her subsequent death.
47. The CQC rated the Home as ‘good’ in its most recent inspection.

Ombudsman’s investigation

48. I wrote to the Home and asked them 12 questions/requests for documents as part of my enquiries. The Home’s first response only answered half of the questions so I asked the questions again.
49. The Home answered some of the questions in its second response.
50. I asked:
• Did [Miss C’s] pressure mat work properly?
• Was [Miss C’s] call bell or pressure mat activated on 21 December 2019 and what action did the staff take in response?
51. The Home said:
• ‘Both the call bell and the pressure mat were working at the time but [Miss C] did not use either. Staff had shown [Miss C] how to use the call bell and the purpose of the pressure mat was explained. The pressure mat audit was undertaken but revealed no fault on [Miss C’s] room.’
52. I asked the Home to provide me with the pre-admission questionnaire, notes taken at the pre-admission meeting, records relating to the call bell or alert mat. The Home has not provided these documents.
53. The Home also said:
• It accepted that the manager’s initial response was not the ‘kind of response we would wish to see.’
• Mrs B was ‘adamant that she wished to see the return of her money provided for [Miss C’s] care and when informed that a refund would not be forthcoming, [Mrs B] began questioning the quality of the Home’s care.’
• Mrs B ‘only wanted to hear what she wanted to hear.’
• The CQC examined the complaint and said the Home was not at fault and there was no linkage between Miss C’s fall and her death.
• The Coroner came to the same conclusions as the CQC.

Analysis

Care plan and risk assessment

54. The Home should have carried out a full falls risk assessment before Miss C started living at the Home. The Home has admitted that it did not carry out this assessment until 19 December 2019 and this was fault.
55. I appreciate the care plan assessed ‘mobility’, but a mobility assessment is not a falls risk assessment and the Home’s own policy said that each resident should have a full falls risk assessment conducted at the time of admission which did not take place.
56. I also share Miss C’s concerns about the date of the care plan. Unfortunately, there is no copy of the care plan dated 12 December 2019. The Home has only provided the latest version of the care plan which was amended at later dates. I accept that the care plan may have been started before Miss C moved in, but I cannot say from the records to what extent it had been completed. It I also not clear why the Home was amending the plan after Miss C had moved out and was in hospital.

Actions after the fall on 18 December 2019

57. There was fault as the Home failed to notify the family of the first fall.
58. There was no evidence that Miss C was sufficiently monitored after the fall. There was a gap between 21:00, soon after the fall and 01:05 which would have been the most important time to monitor Miss C.
59. I am also of the view that there was no proper investigation or incident reporting after the first fall. There was no description of how the fall happened, no attempt to find out what happened. It is not clear whether anyone even asked Miss C how or why she fell.
60. There was no investigation into whether the care plan was followed, particularly in relation to a response to any alert from Miss C’s room. There was no record whether Miss C used her call bell or whether there was an alert via the mat. If no alert was received, then the Home should have found out why this was. If an alert was received, then the Home should have found out how long it took staff to respond. Clearly, if Miss C fell immediately after the alert, this would be a different matter than if Miss C’s alert went unanswered for say, 10 minutes and she then had a fall. This information could have informed the Home’s care plan after the fall.
61. I note that the Home said in its complaint response dated 16 July 2020 that it disagreed that the first fall was a warning and an opportunity to review measures in place and to take action to prevent the serious fall on 21 December. This was a concerning comment as it seemed to put little value in the Home’s own policies of incident reporting, investigating and risk assessment after any fall.

Falls risk assessment dated 19 December

62. There was fault in the falls risk assessment that the Home carried out on 19 December 2019. This assessment did not fully consider the risk factors. The assessor failed to include Miss C’s history of falls or the fact that Miss C needed a walking aid such as a Zimmer frame, but had difficulty in using one because of her Parkinson’s. The assessor did not include Miss C’s medication and there was no space to include Miss C’s Parkinson’s diagnosis which would have been vital in the risk assessment.
63. The Home’s documents were confusing as the risk assessment contradicted the care plan. The care plan said Miss C’s risk of falls was high and yet, ironically, after a fall, the Home reduced the risk to ‘medium’.

Actions after the fall on 21 December 2019

64. I agree there was fault in the Home’s decision to move Miss C via a hoist after her second fall.
65. It was debatable whether Miss C, who had dementia and who had just suffered a trauma, had the mental capacity to make decisions about whether she should be moved. But regardless, even if she had capacity, the Home’s staff had a duty to follow its first-aid policy and training and not to move Miss C. By not following the first aid policy and training, the staff potentially put Miss C at risk of harm.
66. I also agree there was still no evidence that the Home carried out a proper investigation into the causes of the second fall and this was further fault.

Complaint response

67. I also agree with Mrs B that there was fault in the way the Home responded to her complaints.
68. Mrs B made her formal complaint om 17 January 2020. The Home did not acknowledge her complaint until June 2020 and did not respond until July 2020. This was fault and not in line with the Home’s complaint policy.
69. I also agree that the Home’s response did not fully answer the complaint that Mrs B had made. I agree that, at some level, the Home’s correspondence gave the impression that the Home dismissed Mrs B’s complaints and focussed on Miss C’s role in the falls (her mobility and mental capacity), but not the Home’s role (assessing risk, minimising risk and supervision).
70. For example, the Home repeatedly said Miss C ‘chose’ not to use the call bell, ‘chose’ not to use the handrail, ‘chose’ to mobilise therefore suggesting the Home could not be blamed if Miss C had an unsupervised fall. But Miss C had dementia and the care plan said she may forget to use the call bell or use the handrails. The care plan said staff had to supervise Miss C as much as possible when she was mobilising because of her risk of falls and the Home had installed a care mat to alert staff.
71. I note the Home ignored the issue of the alert mat throughout most of its complaint correspondence whereas I was of the view that this was an important issue that should have been addressed. The Home installed the care mat so that Miss C could be supervised when she mobilised. If this plan was not working, then the Home should have found out why.
72. I accept the Home could not eliminate all risk of falls, but Mrs B’s complaint questioned whether the Home had done everything it could to assess and address the risk of falls through its risk assessment and care plan. Those were genuine complaints but the Home seemed reluctant to respond to those complaints and instead seemed to focus on whether or not it could be blamed for the fall.

Injustice

73. I cannot say, of course, what would have happened if the Home had carried out the various assessments properly at the time when they were required. I cannot say whether the care plan would have been different. I also do not know what would have happened if the staff had not moved Miss C after her second fall. Therefore, the main injustice is the uncertainty (distress) of not knowing whether things would have been different if the fault had not happened.
74. Sadly, Miss C, who suffered the main injustice from the Home’s fault has passed away and therefore any injustice to her cannot be remedied.
75. The injustice of distress cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault. The Ombudsman usually pays between £100 and £300 for distress. I am of the view that £200 would be appropriate in this case.
76. I am also of the view that Mrs B had ‘time and trouble’ above what is usual in pursuing this complaint because of the Home’s reluctance to answer her complaint. The Home should pay £150 to remedy this.
77. The CQC is the best agency to address any service improvement issues that may arise from this complaint and I will share this decision with the CQC.

Agreed action

78. The Home has agreed to take the following actions within one month of the final decision. The Home will:
• Write to Mrs B. In its letter the Home should acknowledge the fault and apologise.
• Pay Mrs B £350 to reflect the distress she has suffered.
79. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Final decision

80. I have completed my investigation and have found that the Home’s actions have caused an injustice. The Home has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

81. I have not investigated Mrs B’s complaint that there were irregularities in the evidence provided by the Home at the Coroner’s inquest hearing. The Ombudsman cannot investigate a complaint about what happened in court.
82. I have not investigated Mrs B’s complaint about the CQC as the CQC is not a body in the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman