Durham County Council (20 002 566)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 12 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the care commissioned by the Council when her late father, Mr Y had a respite stay at Cedar Court. She said the Care Provider did not prevent Mr Y from having several falls and did not take medical advice when he had chest pains. She also said it did not tell Mrs Y about the falls or chest pain and took too long responding to her complaint. She says this caused them significant distress. We found the Care Provider failed to keep Mrs Y informed about the falls, chest pain and progress with her complaint. This put Mr Y at a significantly increased risk of harm. I do not find fault by the Care Provider in the action it took to prevent falls or the way it dealt with the chest pain. The Council has agreed to apologise and arrange to reimburse Mr Y’s estate with 50% of his fees. It has also agreed to take action to ensure the Care Provider’s practice, and its own, avoids similar failings in future.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complained on behalf of her late father, Mr Y, and her mother, Mrs Y. She complained about the care provided to Mr Y in early 2019, at Cedar Court Residential and Nursing Home, run by Sanctuary Care (England) Limited (the Care Provider). She said the Care Provider, commissioned by the Council:
    • did not take suitable action when Mr Y complained of chest pain and felt unwell.
    • did not prevent Mr Y from having several falls.
    • delayed dealing with her complaint about this.
    • did not tell Mrs Y or Mrs X about the chest pain or the falls.
    • did not keep Mrs X properly informed about the progress of her complaint.
  2. Mrs X said Mr Y had several falls during his short stay of about four weeks. Sadly, Mr Y was admitted to hospital two days after he returned home and died around one week later. Mrs X feels the Care Provider’s actions contributed to Mr Y’s death and this caused significant distress to Mrs Y and Mrs X. They would like lessons to be learned so other people do not have similar experiences.

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The Ombudsman’s role and powers

  1. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  2. 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)
  3. 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 council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended). In this case, Mrs X’s complaint was initially delayed by the distressing events of February 2019. Mrs X persisted with her complaint from May 2019, and new information from investigations into Mr Y’s death added to her complaint. We therefore exercised discretion to investigate her complaint about the events of February 2019.
  4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mrs Y has consented to Mrs X making this complaint on her behalf.
  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). We have decided that Mrs X is a suitable representative to make this complaint on Mr Y’s behalf.

  1. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

The Care Quality Commission

  1. 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.
  2. 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.
  3. Regulation 12 is about safe care and treatment. The guidance says “Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities/bodies. Also, “Outcomes of investigations into incidents must be shared with the person concerned and, where relevant, their families, carers and advocates”.
  4. Regulation 17 is about good governance. 17(2)(c) says care providers should: “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”. The Guidance says that “records relating to the care and treatment of each person using the service must be kept and be fit for purpose. Fit for purpose means they must…be complete, legible, indelible, accurate and up to date…”
  5. Regulation 20 is about a duty of candour. 20(1) says “Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”. The CQC’s guidance on this regulation says:
    • “Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body”.
    • “Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them”.
    • “Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong”.
  6. The Care Quality Commission (Registration) Regulations 2009 is another set of regulations providers must follow. Regulation 18 is about notification of other incidents. The CQC’s guidance on this says “Providers must notify CQC of all incidents that affect the health, safety and welfare of people who use services”.

Complaint handling

  1. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
    • how it has considered the complaint; and
    • what conclusions it has reached about the complaint, including any matters which may need remedial action; and
    • whether the responsible body is satisfied it has taken or will take necessary action; and
    • details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

  1. Regulations do not say how long a complaint investigation should take but expect this will be determined at the start of the procedure. This should usually be in discussion with the complainant. During the investigation, the body must keep the complainant informed of progress ‘as far as reasonably practicable’. If the responsible body has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

  1. Mr Y had several health conditions including dementia and Parkinson’s disease which caused him significant difficulties with mobility. In January 2019, Mrs Y contacted her GP surgery because Mr Y had fallen at home and she could no longer cope. The nurse practitioner alerted the Council and a social worker visited Mr and Mrs Y with the nurse practitioner. Mr Y was checked by the nurse because of concerns he might be bleeding because of his recent fall; she found blood on his arms. She also thought it possible he had a urine infection as he was prone to these. The social worker noted that Mr Y’s mobility was “very poor”, and therapists thought this was likely due to a progression of his Parkinson’s. Mr Y was at a high risk of falls and he said sometimes his leg locked or gave way due to this. The Council arranged for Mr Y to go to Cedar Court Residential and Nursing Home (Cedar Court) for respite. Council records note Mr Y was happy to go and chose Cedar Court, where he stayed for around four weeks. He was to be assessed for 24 hour care in a general residential bed but transferred to an intermediate care plus bed in the same home soon after admission. This was because therapy might be helpful in improving his mobility but there was no bed available when Mr Y was admitted.
  2. On the day Mr Y returned home in early February, he was unwell. The district nurse called his GP and the GP called Mr Y. The following day, Mr Y was admitted to hospital with a heart attack. Mrs Y and Mrs X were advised that his prognosis was poor because an earlier heart attack had not been treated. Mrs X explained that Mr Y was fitted with a stent, which is a small mesh tube inserted to keep an artery open. He was also given anti-platelet medication which is commonly used to reduce the risk of a further heart attack but can cause bleeding. The consultant asked Mrs X if Mr Y had recently had a fall; she said no. However, Mr Y had received a head injury and Mrs Y says the anti-platelet medication caused him to bleed from the injury. Sadly, around one week later, Mr Y died in hospital.
  3. Mr Y’s family contacted his GP about the earlier heart attack as they were not aware of this. He advised the family that the Care Provider had made a call to 111 about prolonged, acute chest pain two days before he returned home. Mrs Y and her family did not know about this. The family were unhappy and felt this had led to Mr Y’s death. They complained to the Care Provider soon after his death saying it had failed to obtain medical help when Mr Y complained of chest pain. The complaint said the Care Provider:
    • failed to fully advise the 111 service of Mr Y’s many medical conditions which need various daily medications.
    • Did not inform the family of the chest pain and did not contact them to clarify Mr Y’s health conditions particularly diabetes.
    • Did not inform the family of the various falls Mr Y had while at Cedar Court.
  4. The Coroner found Mr Y’s death was the consequence of “a fall or falls prior to 6th February 2019 contributed to by the administration of a necessary anti platelet therapy”.
  5. The Care Provider’s records show Mr Y’s goals on admission were to improve his mobility, strengthen his legs and help his confidence. This was so he could return home with improved independence. Also, to resolve any urine infection and improve his mood and self worth. The Care Provider’s records also show that Mr Y’s mental capacity varied. It found he could not make his own decision about the care to be provided so notes it spoke to Mrs Y to consent on his behalf. The Care Provider had not fully completed the forms about his mental capacity.
  6. Mrs X asked the Council for a meeting to arrange Mr Y’s discharge home in early February. The meeting at the home found he did not want to stay at Cedar Court. He could make his own decision about this and insisted on returning home that day before the Council could arrange care and support for him at home. The assessment noted he had six falls while at Cedar Court.

Mr Y’s falls

  1. The Care Provider sent me records of 10 falls that Mr Y had at Cedar Court, seven of which were in the 10 days before he left. The Care Provider’s records note that Mr Y refused to use his nurse call buzzer to alert staff when he wanted to get up. One care worker noted “he is constantly being caught by his sensor alarms as he gets up unsupervised”. Eight of the falls were unwitnessed, nine happened in the bathroom. Mr Y could not judge the position of the toilet due to his Parkinson’s and missed the toilet when he sat down. Staff were alerted by the sensor alarms but when they got to him, he had already fallen.
  2. On each occasion staff completed an incident report. The Care Provider had sensor mats in place to ensure staff were alerted to Mr Y getting up but at times this did not work. The Care Provider replaced the sensor mat with a new one, but Mr Y still managed to get up without triggering the alarm. Also, when the alarm was triggered, Mr Y had already fallen by the time staff reached him. On each occasion the Care Provider noted it considered actions to reduce the risk and says each time staff reminded Mr Y to use his buzzer to call for help. Each of the incident forms noted that family were not told. Mrs X says batteries were missing from the sensor mat and one mat was faulty. Mr Y reported several times that staff had not responded when he pressed his buzzer for help so would try and go by himself.
  3. On 28 January, the Care Provider noted that Mr Y’s mobility was “very poor today”. He had to be lowered to the ground when his legs gave up and staff had to follow him with a chair as he “kept freezing and falling back”. It noted that he needed a urine dip test.
  4. On 29 January, following three falls on 28 January, the Care Provider asked for a visit from the surgery because of high blood pressure. One of these falls injured a skin tear on Mr Y’s arm about 1 inch by 1 inch. On one document this is noted as injury to an existing wound and the district nurse is recorded as attending to dress a wound on his arm a week earlier. However, there was no record to explain how the wound originated though it may have been from the fall at home before he arrived at Cedar Court. The Care Provider also asked the surgery for a visit two days later because of the frequent falls. The nurse practitioner visited on 29 and 31 January. On 29 January, the nurse practitioner asked the Care Provider to monitor Mr Y as he was not currently prescribed medication for his Parkinson’s.
  5. The records from the Care Provider also included a 48 hour observation chart for a head injury. This was completed with Mr Y’s name but nothing else; no other records indicated Mr Y had received a head injury at Cedar Court. However, the daily logs were not clear with separate logs for ten different areas such as mobility, pain, nutrition, and breathing. None of these covered all Mr Y’s stay at Cedar Court. For example, the mobility logs covered 18 January to 28 January and the nutrition log 30 January to 5 February. The sleep log covered 21 January to 6 February and the elimination log 18 January to 5 February. While the Care Provider had some detailed personal information on record, it did not have information about family other than Mrs Y. This information would usually be provided by the social worker or family. In this case, neither Mr or Mrs Y could do this on admission and the Care Provider did not consult other family. Since this complaint, the Council has asked the intermediate care plus manager to consider the social worker’s practice.
  6. Mrs Y had a hearing loss and could not hear when the Care Provider tried to pass on information on the telephone. The Care Provider said this was why it had not updated Mrs Y. Mrs X says Mrs Y visited daily and another member of the family was always with her; the Care Provider could have communicated with her then.
  7. Since this complaint, the Care Provider has implemented an electronic care plan system which requires monitoring and review of all incidents and falls.

Chest pain

  1. The Care Provider’s records show that two days before he returned home, Mr Y complained of chest pains. The Care Provider called the NHS 111 service as Mr Y had chest pains and felt unwell. The Care Provider gave his blood pressure, pulse, temperature, blood sugar and oxygen levels. The NHS 111 operator asked to speak to Mr Y who answered the questions. The 111 report notes he was conscious, not fighting for breath, and warm to touch. It also noted:
    • He had not had a previous heart attack.
    • No pain at the time of the assessment.
    • Pain in the previous 24 hours.
    • Pain in the previous 12 hours.
    • No previous diagnosis of aortic aneurysm or Marfan’s syndrome.
    • Skin on the torso felt normal, warm or hot.
    • No sudden onset of ripping or tearing pain.
    • No crushing or aching pain in the chest, upper back or upper abdomen, or pain radiating to the neck, arm, jaw or shoulder in the last 24 hours.
    • No vomiting or nausea with the pain in the past 24 hours.
    • He had not been sweaty or clammy with the pain in the past 24 hours.
    • No drug or solvent abuse.
    • No implanted cardioverter defibrillator.
    • Able to carry out most or all normal activities.
    • No new or worsening breathlessness.
    • Arm had not suddenly become cold, pale or blue.
    • No sudden onset of pain and swelling of the entire arm.
    • No new leg pain or swelling.
    • No new shoulder tip pain.
    • No abdominal pain.
    • No palpitations at the time of the assessment.
    • He had not coughed up blood.
    • No previous diagnosis of angina or operation to unblock the arteries of the heart.
    • Previous history of diabetes.
  2. The report noted the advice given was that paracetamol or ibuprofen could be used to relieve pain or reduce a fever unless advised not to. It said, if there were any new symptoms, or if the condition got worse, or changed, or there were other concerns, call us back. It also said, “recommended to speak to a primary care service within 1 hour”.
  3. The Care Provider monitored Mr Y and recorded that all observations were normal. The senior dealing with Mr Y received a call from the local primary care centre who were satisfied he was ok. They advised that if Mr Y got any more pain or the Care Provider was worried, to ring 111 or 999. The Care Provider noted this was the first day Mr Y had used his nurse call buzzer to ask for help.
  4. The professional’s visits record which noted the call with NHS 111 and the primary care centre, has a column for the date and time that family were informed. This column was blank for every entry.
  5. This incident was also not raised at the discharge meeting two days later. The Care Provider was not present for the meeting and the Council said it had not asked it for any feedback.
  6. In its final response to the complaint, the Council apologised unreservedly to Mrs X and her family for the failure to tell them of the chest pain and contact with NHS 111. It said the Care Provider has instructed staff to ensure updates to next of kin “as should have happened in this case” is always formally recorded.

Complaint handling

  1. In mid May, Mrs X complained to the Council. The Care Provider had written twice to Mrs Y to say it was still investigating her concerns. The Council said her concerns were being investigated by the Care Provider. The Council decided to oversee the investigation and prompted some communication with Mrs X. It asked its Strategic Commissioning Manager to monitor the outcome of the complaint.
  2. In July, following contact from Mrs X, the Council advised her that it had been proactive in monitoring the Care Provider’s progress. It said the investigation had been hampered by being unable to access the transcript of the call to the NHS 111 service. The Care Provider had taken legal advice and was waiting for the outcome of the Coroner’s investigation. It hoped this would provide some answers. The Council said it had “been clear in advising that Cedar Court should be updating you in relation to their own investigation” and apologised for the Care Provider’s delay in doing this. It said it had asked the Care Provider to confirm the current position to Mrs X urgently. The Care Provider sent a letter to Mrs X saying it was conducting a thorough investigation and would be in touch as soon as it arrived at an outcome. It did not mention it would wait for the Coroner to complete their investigation. In August, the complaint and the Council’s monitoring of the complaint were put on hold pending the outcome of the Coroner’s investigation.
  3. Mrs X complained to us in July 2020. We usually expect people to complete complaints procedures before we consider whether to investigate a complaint. The Council said it had not completed its complaints procedures. It said it could investigate the complaint about Mr Y’s care if it did not address Mrs X’s point that the Care Provider’s actions contributed to Mr Y’s death.
  4. As the Council had not completed its complaints procedure, we decided to wait for it to do this. We reopened this complaint in December 2020 when the Council confirmed it had completed its procedures and Mrs X remained dissatisfied with its response. The investigation into Mr Y’s death ended after Mrs X complained to us.

Was there fault causing injustice?

Mr Y’s falls

  1. The Care Provider had appropriate risk assessments and actions in place to minimise the risk of falls; it could not prevent Mr Y from falling. When Mr Y fell, the Care Provider took suitable action to record the fall and consider whether any changes were needed to his care plan. It took appropriate advice from health professionals. I am satisfied it took suitable action to avoid Mr Y falling and found no fault here. However, it did not advise the family about the falls and this was fault. I am particularly concerned about the blank head injury observation form and the lack of consistent daily logs. On the balance of probability, I can only conclude that Mr Y had a head injury at some point, but the observations were not completed. I cannot conceive of any other reason why there would be one of these forms in his file when there are so many other records not included. I would expect such an injury to be reported to CQC. As the daily logs were either not completed or are missing, information that could explain some of this is absent. We cannot say Mr Y would not have fallen if the family had known, but he was put at undue and significant risk of harm as a result. The family are left with uncertainty about this and about the impact on his health and wellbeing. The Care Provider did not just forget to tell the family, but actively decided not to do this, noting its decision on each incident form. The lack of information given to the family meant Mrs X could not provide accurate information to health professionals looking after Mr Y. This may have contributed to a significant negative impact on Mr Y’s health and wellbeing. We cannot now put right any harm or distress to Mr Y, but this caused Mrs X and Mrs Y significant, avoidable distress and uncertainty. I have recommended a reimbursement of Mr Y’s fees to recognise the significant impact of these failures of communication and recording. While the care was adequate in the main, these failures meant the service he received fell significantly short of acceptable.
  2. As this indicates a potential breach of regulations 12, 17 and 20, I will send a copy of the final decision to CQC.

Chest pain

  1. The Care Provider took appropriate advice when Mr Y had chest pains. There was no evidence these chest pains were in fact the earlier heart attack referred to, although it may have been so. The Care Provider spoke to NHS 111 and the local primary care team; I am satisfied this is suitable medical help. The responses to NHS 111’s questions reflect what the Care Provider knew about Mr Y’s medical history. Mrs X’s comments about the call do not suggest any responses were wrong and NHS111 was aware of Mr Y’s diabetes which she believed it was not. Also, the local primary care team were satisfied that Mr Y did not need further intervention. I found no fault here. However, once again, the Care Provider had not informed the family, and this also caused them significant, avoidable distress and uncertainty.
  2. In response to my draft decision, Mrs X advised that Mr Y had a previous diagnosis of angina; this was not listed in the Care Provider’s record of Mr Y’s medical history.

Complaint handling

  1. The Care Provider did begin investigating Mrs X’s complaint but did not communicate adequately with her about its progress.
  2. It is for the Council or Care Provider to decide whether it must put the complaint on hold, but it should have told Mrs X and clearly explained why this was. The Council decided it could investigate once Mrs X came to us. It told us it could investigate Mrs X’s complaint except for the claim that the Care Provider’s actions caused Mr Y’s death. Since it could never investigate that complaint, and the Coroner’s investigation was still underway, nothing had changed. The Council says it was not aware Mrs X was unhappy about the delay so had not considered this approach previously.
  3. I found fault in the lack of communication with Mrs X and the delay investigating her complaint. This caused her significant, avoidable distress and frustration because she believed the Care Provider had caused Mr Y’s death. However, the complaint to the Council and Care Provider could never determine this, regardless of how long the investigation took; this was for the Coroner to decide. Once the Council realised Mrs X was unhappy with the delay, it properly considered what it could investigate pending the Coroner’s outcome.
  4. The Council has already apologised and taken several suitable actions, along with the Care Provider, to prevent similar problems in future. The Council’s approach to this is to be commended but I have recommended some further actions.
  5. I noted in paragraph 23 that the Care Provider had not fully completed the forms about Mr Y’s mental capacity. I did not investigate this further as I found no indication of any injustice relating to this. However, in other cases, these omissions might have caused problems, and, considering the other recording issues, I have also recommended action around this.

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Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
  2. To remedy the outstanding injustice detailed above, I recommend the Council:
        1. Apologise to Mrs Y and Mrs X and ensure this covers those faults for which it has not previously apologised. This should also set out the further actions it will take to avoid similar problems in future.
        2. Ensure the Care Provider also apologises to Mrs Y and Mrs X.
        3. Reimburse 50% of Mr Y’s fees for his stay at Cedar Court.
        4. Review the Care Provider’s practice to ensure that people supporting residents are consulted with where appropriate and kept suitably informed.
        5. Review the Care Provider’s practice to ensure records and documentation are properly completed particularly around:
          • Personal information.
          • Falls and head injuries.
          • Contact with family and others.
          • Mental capacity.
          • Daily logs.
        6. Ensure both the Council’s and care providers’ complaints processes consider potential conflicts with investigations by other bodies at the earliest opportunity. This should ensure that complaints are only put on hold where essential.
        7. Review practice by social workers generally, to ensure care providers have all necessary information about individuals referred by the Council.
        8. Complete the first three recommendations within one month and the remainder within three months of my final decision and provide evidence to me. Suitable evidence would include a copy of the apology and details of the reviews with action plan detailing progress.

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Final decision

  1. I have completed my investigation and uphold Mrs X’s complaints that the Council:
    • did not tell Mrs Y or Mrs X about the chest pain or the falls.
    • did not keep Mrs X properly informed about the progress of her complaint.
    • delayed dealing with her complaint about this.
  2. I did not uphold Mrs X’s complaints that the Council:
    • did not take suitable action when Mr Y complained of chest pain and felt unwell.
    • did not prevent Mr Y from having several falls.

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Investigator's decision on behalf of the Ombudsman

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