Summary: the complainant complained the Care Provider caused her late mother an injustice by failing to provide suitable care for her including reporting an injury and other lapses in care. The Care Provider said it investigated complaints and as a result undertook staff training and improvements. The Care Provider says it designed the service based on information presented by the complainant. On the information we have gathered we find the Care Provider caused an injustice for which it apologises and will pay £150.

The complaint

1. The complainant whom I shall refer to as Mrs X complains the Care Provider caused her late mother, Mrs Y, injustice by failing to provide suitable care or manage her needs properly. Mrs X says the Care Provider also unfairly criticised her as Mrs Y’s deputy, causing added distress.
2. Mrs X says the failings put Mrs Y at risk of harm and wants the Care Provider to recognise its failings and offer a remedy for the distress caused.

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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 an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If 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)

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How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mrs X and read the information presented in her complaint;
• Put enquiries to the Care Provider and reviewed its responses;
• Researched the relevant law, guidance, and policy;
• Shared with Mrs X and the Care Provider a draft decision and reflected on their comments before reaching this final decision.
7. 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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What I found

The Law and guidance

8. The Mental Capacity Act 2005 sets out the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
9. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success
10. 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.
11. 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.
12. 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 one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Care Quality Commission Report

13. 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.
14. In its Inspection Report of 6 May 2019, following visits in March 2019 to the Parkside Residential Home the CQC rated the Care Home:
• Safe service Requires Improvement
• Effective service Requires Improvement
• Caring service Good
• Responsive Good
• Well-led Requires Improvement.
15. The Report noted complaints the Care Provider had not managed medicines safely or kept accurate or complete records. Some residents expressed concern about a lack of support during the night. However, the report noted residents found the staff kind and compassionate and treated them with dignity. They said staff developed positive relationships and supported them with their nutritional needs and meal choices though some residents criticised the quality of the food.

What happened

16. Mrs Y lived at the Parkside Residential Home at 65 Main Road, Gidea Park, Romford RM2 5EH (the Care Home) from July 2017 until September 2019.
17. Mrs Y created a lasting power of attorney in January 2018 while resident in the Care Home to ensure Mrs X could act on her behalf if she lost mental capacity. This replaced the general power of attorney Mrs Y had given Mrs X in 2012.
18. Mrs X says she registered both powers of attorney with the Care Home and Mrs Y’s GP. In June 2018 Mrs Y’s GP explained to Mrs X the Lasting Power of Attorney only takes effect when Mrs Y lacks capacity to make decisions. The GP says in the email, this ‘is not currently the case’.
19. In October 2018 Mrs Y’s GP referred her to a memory clinic. The consultant psychiatrist assessed Mrs Y as not showing any behavioural or psychiatric symptoms of dementia. Mrs X says that both she and medical professionals caring for Mrs Y believed she had capacity to decide issues for herself in October 2018. Mrs Y presented with memory loss as set out in her Care Plan. However, Mrs X says Mrs Y had capacity and did not need extra support from the Care Home.
20. A meeting in December 2018 between Mrs Y’s family and the Care Provider discussed Mrs Y’s care needs. A further meeting in January 2019 attended by the Care Provider, Mrs X and Mrs Y’s social worker discussed issues arising in the previous year. These included Mrs Y’s increased night-time toileting needs and the reliability of the alarm pad. The social worker followed up provision of an infra-red alarm which the Care Provider had on order. Mrs X says the social worker suggested using floor mats, but the Care provider did not accept that recommendation. In the meeting Mrs X asked why some of her email messages had not reached care workers. The Care Provider said it would forward any messages to care leaders and put them in the handover book. However, the meeting recognised that “…sometimes things got forgotten or overlooked…”
21. The meeting discussed the number of emails sent by Mrs X which Mrs X says she sent to keep staff updated. Mrs X raised concerns one care worker turned off Mrs Y’s alarm without attending to her, and another had been rough when handling her. The meeting heard the parties had not resolved issues raised in May 2018. The care workers’ statements Mrs X said supported her view some staff had not been nice to Mrs Y.
22. In April 2019 Mrs Y had a fall in the morning and then again at night. The Care Provider called an ambulance, and the paramedics found no injury to Mrs Y. Mrs Y’s GP attended the next day to carry out a medical assessment to identify if she had suffered harm and the potential causes of her falls. The Care Provider reported the fall to the local authority safeguarding team.
23. The Care Provider met with the agency who provided some of their staff in April 2019. The meeting noted following its inspection the CQC expressed concerns about the night shift staff. The meeting agreed to update staff on those concerns.
24. In May 2019 Mrs X complained to the Care Provider about the failure to take Mrs Y to the bathroom causing her distress. Mrs X says Mrs Y called her at home from her room saying nobody would take her to the bathroom. Mrs X complained once soiled the Care provider did not provide proper personal care afterwards. Mrs X says she had to clean Mrs Y which she felt harmful to Mrs Y’s dignity.
25. During the summer of 2019 Mrs X says Mrs Y experienced difficulties getting support from staff during the night. The Care Provider says Mrs Y called staff for help on average every 30 minutes which shows in the Care Provider’s view increased care needs. The family disputed claims Mrs Y used her call button every 30 minutes during the night. The Care Provider says its call bell provider’s records show Mrs Y did call for help on average every thirty minutes. Mrs X says the Care Provider’s use of single bed mats for a double bed caused the problem. When Mrs Y moved in her sleep, she would set off the alarm. The family questioned whether the Care Provider had enough staff. The Care Provider says it received 210 emails from the family during the year which caused it to wonder if the Care Home continued to be the right place for Mrs Y. However, the Care Provider says while Mrs X looked for other homes for Mrs Y she felt the Care Hme was the best place for Mrs Y.
26. The Care Provider said it decides the number of care staff needed at night using a care industry formula. This, the Care Provider explained, considers the number of residents and the care needs with which they present to decide how many staff the Care Provider should provide. The Care Provider says that means it needs to know of all a resident’s care needs to properly calculate staff numbers. The Care Provider says Mrs X did not disclose to the Care Provider Mrs Y’s dementia diagnosis which it says is a material factor in calculating what her needs may be.
27. Mrs X says Mrs Y regarded a diagnosis of dementia as a stigma. When diagnosed with dementia Mrs Y did not want the information shared with other people. Mrs X says in Mrs Y’s view she had a bad memory but recognised as it worsened the dementia had caused her to lose more of it.
28. Mrs X says Mrs Y’s medical records with the GP showed the diagnosis and so the GP could monitor her condition. The impact of the dementia only gradually increased as Mrs Y’s memory loss increased. At no time during her time at the Care Home Mrs X says did anyone assess Mrs Y as lacking capacity. The care records show the Care Provider considered Mrs Y as having mental capacity.
29. The care records show that through July to September 2019, care workers reported Mrs Y often used the buzzer at night and called out for help which disturbed other residents. Mrs X says nearby residents she spoke to denied Mrs Y disturbed them. During those months staff noted Mrs Y became more challenging verbally and would resist or complain about physical help offered by care workers. As Mrs Y’s mobility declined the Care Provider installed a hoist in Mrs Y’s room. On one occasion Mrs Y slid out of her bed and care workers found her on the floor after hearing her crying out for help. Care workers completed an accident form to report the incident.
30. In September 2019 staff found Mrs Y with bruising on her legs. Mrs X says the Care Provider never satisfactorily explained the bruising. The Care Provider says the safeguarding investigation recorded an inconclusive finding. However, the safeguarding investigation found Mrs X’s complaint the call button in Mrs Y’s room had its batteries removed as substantiated. Mrs X says this prevented Mrs Y calling for help. The Care Provider says staff replaced the batteries and the Care Provider told staff to regularly check the batteries remained in place.
31. Mrs X says the Care Provider left Mrs Y overnight saturated in urine causing distress and failing to protect Mrs Y’s dignity. The Care Provider says its records do not support this complaint, but Mrs X believes they have not been completed correctly.
32. Records show staff failed to report the bruising on Mrs Y’s leg in September 2019. They explained they had noticed it but due to being very busy they had forgotten to report it. The Care Provider considered the issue under its staff disciplinary procedure. The Care Provider undertook staff training and gave staff reminders about the strict need to report any injury. The investigation by the Care Provider noted some staff had not recently received training and needed to attend refresher courses.
33. Mrs Y entered hospital and doctors diagnosed her with pneumonia on admission. Mrs Y’s social worker met with the Care Provider in October 2019. She raised concerns about the lack of explanation for Mrs Y’s bruising and the pneumonia. The Care Provider said it had reported the bruising to the Police, local authority safeguarding team and CQC. The Care Provider says it has no evidence to show the bruising or its care led to the pneumonia. During this meeting, the Care Provider’s staff member said “…we have been at war with [Mrs X] …”
34. Mrs Y told Mrs X she no longer felt safe at the Care Home. Mrs X arranged for Mrs Y to return to live with her.
35. In responding to my enquiries, the Care Provider says it knew nothing of Mrs Y’s diagnosis of dementia until August 2019. Mrs X revealed the condition when it began to worsen and affect Mrs Y. The Care Provider says had it known of the condition earlier there would have been less misunderstanding of Mrs Y’s challenging behaviour. Staff would recognise they could not apply logic or reason when dealing with a resident with dementia and use their training in how to deal suitably with a dementia patient. This can include reassurance, distraction or taking the resident into a different room to change the environment for example. The Care Provider says the Care Plan would have identified her fluctuating needs and staff would know how to support her. The Care Provider says they would have referred Mrs Y to the mental health team for assessment possibly leading to an application for a deprivation of liberty safeguards if appropriate. Mrs X says when she did tell the Care Provider’s manager about the diagnosis, she failed to pass the information on to her staff.

Analysis – was there fault causing injustice?

36. My role is to decide if the Care Provider caused an injustice to Mrs X and Mrs Y. If it did then I must consider what impact that had and what the Care Provider should do to address that impact.
37. Mrs X raised several detailed complaints of poor-quality care in her complaint. Too many to fully set out in this statement but which relate to similar events to those recorded here. Both Mrs X and the Care Provider have made detailed comments in response to my draft decision and again they cannot be fully recorded in this statement. They have been fully considered and this statement reflects my overall view of the complaint and the events that led up to it.
38. Mrs X’s power of attorney gave her power to act on Mrs Y’s behalf, but only when Mrs Y lacked mental capacity to decide issues for herself. The records do not show the Care Provider’s staff assessing Mrs Y as lacking mental capacity although they do show Mrs Y’s behaviour changing over time. Mrs Y’s diagnosis with dementia is a significant condition that could affect the services she needed.
39. Mrs X revealed the condition when it began to worsen and affect Mrs Y. Mrs X acted in line with Mrs Y’s wishes. However, the Care Provider needed to know about the diagnosis from the start. It could then plan for future changes and include the necessary support in Mrs Y’s care plan. I recognise this affected the response by the Care Provider to Mrs Y’s behaviour. However, I have not seen evidence that knowledge of the condition would have resulted in the Care Provider deciding it could not continue offering care to Mrs Y. When her condition worsened at no time did anyone find she lacked capacity so the extent of any changes may not have been significant.
40. I recognise the Care Providers had legitimate concerns that Mrs X did not reveal the diagnosis earlier. Mrs X believed she had acted according to Mrs Y’s wishes. When it responded to her complaint, the Care Provider could have recognised Mrs X’s reasons for not sharing the diagnosis and explained more empathetically its need to know about the diagnosis earlier.
41. The Care Provider did not explain why knowing about the diagnosis could have a significant impact on its services or how it had affected the service offered. I find that is poor complaint handling. The Care Provider could have recognised the reasons and explained why the lack of information could have significant effects reassuring Mrs X that it had not caused any harm to Mrs Y.
42. It is clear the Care Provider found Mrs X’s involvement in Mrs Y’s care challenging. Receiving over 200 emails shows a keen involvement by Mrs X and staff found that difficult. It is disappointing to read the Care Provider’s staff believed themselves to be ‘at war’ with Mrs X. The family and Care Provider now faced the potential of a damaging rift. In such circumstances the Care Provider should review whether this creates a risk of damaging the Care Provider’s ability to continue offering a service. The Care Provider did this by meeting with Mrs X to review her concerns. It reflected on staff views that Mrs X’s involvement did not support their care for Mrs Y. The Care Provider considered if it could continue to offer a service. It decided it would when Mrs X said both she and Mrs Y wanted Mrs Y to continue at the home.
43. There were lapses in the care offered to Mrs Y. The falls from bed, the failure to ensure Mrs Y received personal care more quickly when she needed toileting or became soiled and when left in her bed soaked in urine. Mrs X had at times to deliver the necessary personal care rather than a care worker which touched on Mrs Y’s dignity. The call button missing batteries is a significant failing putting Mrs Y at risk of harm and lack of immediate help. The Care Provider admitted staff had overlooked or missed some issues. That should not happen. The failure to report bruising on Mrs Y’s leg is a significant lapse. The Care Provider investigated and took suitable measures. I find the lapses in care caused an injustice to Mrs X. It raised concerns Mrs Y may be at risk leading her to feel less safe in the home and expressing a wish to leave. Failure to report the injury meant this delayed any reporting to the safeguarding authority potentially putting Mrs Y at risk of harm without safeguarding oversight.
44. We try to place people in the position they would have been but for a fault. Where that is not possible, as here, we may recommend a symbolic payment to reflect the injustice caused. In deciding what to recommend I have considered the action taken by the Care Provider to address issues with its staff which hopefully will prevent recurrence.

Agreed action

45. To address the injustice I propose finding, I recommend the Care Provider within four weeks of this my final decision:
• Apologises for those lapses to Mrs X;
• Pays Mrs X £150 in recognition of the distress caused by the lapses;
• Reflects in information given to residents the need to update the Care Provider with all diagnoses of health conditions. The information to explain this may impact on the service the Care Provider delivers to residents. Therefore, it should be disclosed regardless of the relative’s wishes.

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Final decision

46. In completing my investigation, I find the Care Provider caused an injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman