Summary: Mrs X complained the Care Provider commissioned by the Council over medicated her mother, Mrs Y, to manage her behaviour. She said this negatively affected her mother’s health and caused her and mother distress and upset. There was no fault in the Care Provider’s actions.

The complaint

1. Mrs X complained the Council commissioned Care Provider over medicated her mother, Mrs Y, because it could not manage her behaviour. She said this led to a decline in Mrs Y’s health.
2. Mrs X said this led to significant stress and upset for her and Mrs Y.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
5. 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.
6. 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)

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How I considered this complaint

7. I have contacted Mrs X and discussed her view of the complaint.
8. I considered the Council’s submission to the Ombudsman which included Mrs Y’s needs assessments and care records and correspondence shared between Mrs X, the Care Provider and the Council.
9. I wrote to Mrs X and the Council with my draft decision and gave them the opportunity to comment before I made the final decision.

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What I found

Law

10. Part 3 of the Local Government Act 1974 covers complaints where councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. The Act says we can treat the actions of the Care Provider as if they were the actions of the council in those cases.
11. In this case, the Council commissioned the Care Provider to care for Mrs Y.
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the standards registered care providers must achieve when providing care services. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
13. Regulation 9 states care providers must provide care and treatment which is appropriate and meets people’s needs.
14. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
15. Regulation 20 states care providers must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying out a regulated activity.

Safeguarding

16. Section 42 of the Care Act 2014 states a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself.
17. Councils must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

The Care Provider’s medication policy and procedure

18. The Care Provider’s medication policy requires it to ensure that it regularly reviews service user’s medication.
19. The Care Provider must ensure that policies and procedures are in place that comply with legislation and guidance for medicine administration.
20. Care staff must be trained and assessed as competent to administer medication.

Mrs X’s complaint

21. Mrs Y suffered with dementia and lacked capacity to make decisions about her care. She needed to take several medications up to four times a day to manage various health issues.
22. In January 2019, the Council assessed Mrs Y as requiring 24 hour supervision and care. Mrs Y’s GP contributed to the assessment and noted, “Mrs Y requires all medication to be administered to her…Mrs Y takes medication to calm her behaviours as she will lash out and spit at staff… Mrs Y can become agitated even with medication.”
23. Mrs Y joined the Care Provider’s care home on 9 February 2019. Mrs Y’s GP advised the Care Provider to make some changes to her medication regime including stopping some medications and reducing the doses of others as she was experiencing unwanted side effects.
24. Care records from March 2019 state,“Mrs Y was previously non-compliant however care staff have been able to prompt and encourage Mrs Y…Mrs Y has settled well and there has been a noticeable change in her presentation and behaviour.”
25. In April 2019, the Care Provider told Mrs X it had requested a review of Mrs Y’s medication because care staff had noticed Mrs Y appeared agitated and they felt Mrs Y’s medication was not agreeing with her. Mrs X said she was happy for the Care Provider to take this action. She also noted that Mrs Y had settled at the care home very well and said she had no issues with the care Mrs Y was receiving.
26. The Care Provider arranged further reviews of Mrs Y’s medication in May and June 2019. The Care Provider also spoke with Mrs Y’s GP over the following months to seek advice for various health issues and behaviours Mrs Y was displaying. On each occasion, the GP made recommendations for adjustments the Care Provider should make to Mrs Y’s medication.
27. In October 2019, the care home manager contacted the Council to advise Mrs X was unhappy the care home would not allow her to take Mrs Y’s washing home with her. In late November 2019 the Care Provider contacted the Council to discuss the situation. Mrs X said she was unhappy with the care and support Mrs Y was receiving, stating that she had needed to wash Mrs Y’s bedding because the care home was not doing it properly. She also said Mrs Y was being over medicated.
28. Mrs X attended the November 2019 review of Mrs Y’s medicine and discussed her concerns with Mrs Y’s GP and care staff. The Care Provider offered Mrs X a meeting with the care home manager but Mrs X declined this as she said she had complained several times before and the issues had not been addressed. Mrs X also said she was considering moving Mrs Y to another care home which she had initially preferred because she knew someone who worked there.
29. The Council contacted the care home manager to discuss the situation, who said the following, “Mrs Y has sent continuous emails concerning the laundry… the care home feels the relationship between the staff and family has broken down and the best outcome would be for Mrs Y to move home.”
30. In early December 2019, Mrs X, a Council social worker and the care home manager met to discuss Mrs Y’s future at the care home. The following notes were recorded at the meeting, Mrs X “has taken issue with the amount of medication as she feels [Mrs Y] is medicated to the point she is a ‘zombie,’… I explained that the medication was prescribed by the GP and had been reviewed and that they have to manage [Mrs Y’s] behaviour and when all practical steps have been exhausted, medication is often the last resort…whilst [Mrs X] understands this she feels that there is a different medication that would be more appropriate and will discuss with the GP.”
31. At the Care Provider’s request, Mrs Y’s GP visited in late December 2019 to review Mrs Y’s medication and reviewed her medication again two weeks later. The GP made further adjustments and recommendations to Mrs Y’s medication regime.
32. In December 2019, the Council arranged another needs assessment and noted the following: Mrs Y “requires supervision/support and encouragement from all staff with all aspects of her personal care… all medication is administered to [Mrs Y], she is not always compliant with her medication or care routines and takes medication to calm her behaviours as she will lash out and spit at staff.”
33. In early January 2020, Mrs Y’s GP visited and recommended a reduction in Mrs Y’s medication over a period of two/three weeks. Mrs X asked for the Council to conduct a safeguarding investigation as she remained unhappy with the treatment Mrs Y was receiving at the care home.
34. Mrs Y moved to another care home at the end of January 2020.
35. In March 2020, Mrs X raised a complaint with the Care Provider. She said the Care Provider should have given Mrs Y medication only when necessary and not every day. She said she was unhappy the care home would not allow her to take Mrs Y’s laundry home with her and she was unhappy care staff did not make Mrs Y’s bed in a particular way. Mrs X also sent pictures of Mrs Y and her bedding.
36. The Care Provider manager consulted Mrs Y’s care plan and spoke to care staff. The investigation did not find fault with the care staff’s actions. The care home manager said staff followed instructions given by Mrs Y’S GP and regularly reviewed her care. The care home manager said staff followed Mrs X’s instructions for how to make Mrs Y’s bed but Mrs Y would often remove the bedding. The manager also advised it did not have specific training in bed making. The manager explained it could not allow Mrs X to continue taking Mrs Y’s laundry home with her as this created a risk of contamination.
37. The Council also carried out a safeguarding investigation following Mrs X’s complaint and concluded that the care home followed the correct protocol and found no evidence indicating Mrs Y had been over medicated.
38. Mrs X referred the matter to the Ombudsman because she was unhappy with the outcome of both investigations and remains of the view that the Care Provider over medicated Mrs Y.

Findings

39. Mrs X complained the Care Provider over medicated Mrs Y because it could not manage her behaviour. The Care Provider is required by law and its own process to provide person centered regularly reviewed care and support. The evidence shows the Care Provider regularly sought the advice of Mrs Y’s GP and administered her medication in line with his advice and recommendations.
    The evidence also shows that Mrs Y’s GP sanctioned the use of medication to manage Mrs Y’s behaviour. After Mrs X raised concerns, the Care Provider investigated the matter by reviewing Mrs Y’s care plan and records and by speaking with staff who had cared for Mrs Y. The Council also conducted an independent safeguarding investigation. Neither investigation uncovered any evidence of fault on the Care Provider’s part. There is nothing to suggest either investigation was flawed or incomplete. It is not the Ombudsman’s role to question the outcome of a decision the Council has properly made. There is no fault in the Council or Care Provider’s actions.
40. Mrs X said the Care Provider failed to properly care for Mrs Y and sent pictures highlighting the issues she was concerned about. The Care Provider investigated the matter and explained why it had difficulty making Mrs Y’s bed in the manner Mrs X wanted. The Care Provider also explained why it was unable to allow Mrs X to take Mrs Y’s laundry home with her. The Care Provider responded to Mrs X’s concerns and explained its actions in relation to the specific issues she raised. There is no fault in the Care Provider’s actions.

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Final decision

41. There was no fault in the Care Provider’s management of Mrs Y’s medication or in the care provided to Mrs Y. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman