The Ombudsman's final decision:
Summary: There was fault in the care home’s failure to properly check the identity of an agency care worker and in the failure to carry out the necessary Covid-19 checks. Mr C did not receive the one-to-one care he should have done during the morning. In addition, one of the care workers breached Mr C’s dignity and right to privacy by taking a photo of him. There was further fault in the Home’s actions after it discovered the incidents and in its complaint responses. We recommend the Home apologises, acknowledges the fault and pays £300 to Mr C’s daughter.
- Mrs B complains on behalf of her father, Mr C, who has sadly passed away. Her complaint relates to Willow Tree Nursing Home in Hillmorton, Rugby which is managed by Culpeper Care Ltd.
- Mrs B’s complaint relates to two incidents. In the first incident, somebody impersonating a care worker gained entry to the Home and was allowed to provide care to Mr C. The second incident involved a care worker taking a photo of Mr C after he had passed away.
- Mrs B complains about the incidents, the Home’s actions once the incidents had been discovered and the Home’s responses to her complaint.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
How I considered this complaint
- I have discussed the complaint with Mrs B and I have considered the documents she and the Home have sent. I have also made third party enquiries from the agency and the Council. I have considered both sides’ comments on the draft decision.
What I found
Law, guidance and policies
- 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.
- 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 the regulations 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 first complaint relates to an incident on 3 April 2020. Mr C was meant to receive one-to-one personal care for four and a half hours in the morning. He paid an extra fee for this care. The Home says there were staff shortages because of sickness on that day and therefore the Home hired a care worker from an agency to provide Mr C’s one-to-one care.
- Mrs D, who used to work a the care home, told Mrs B what happened on 3 April 2020. I have summarised Mrs D’s account of the incident.
- Mrs D says she came in around 8:50 am. One of the care workers told her and the Home’s manager that the agency care worker who was meant to be providing one-to-one care to Mr C kept falling asleep in his room.
- Mrs D went to check on Mr C and said the care worker was sitting in a chair and stared at her blankly. Mrs D asked the care worker whether she had provided Mr C’s personal care but received no response. She then provided the care worker with the toiletries for the personal care. Mrs D told the manager something was not right with the care worker.
- Mrs D went back 20 minutes later and and said Mr C was dressed but ‘in a position that was unacceptable’ on his bed. Mrs D asked other care workers to move Mr C into the correct position which they did.
- Around 10:35 Mrs D asked the care worker whether she had given Mr C his personal care and his breakfast. Around 25 minutes later she went to check on Mr C and the care worker told her she felt poorly.
- Mrs D called the agency who had sent the care worker and said she was really annoyed a care worker had come into the Home feeling unwell and said the agency worker was a ‘terrible’ carer. The manager asked to speak to the care worker. The agency manager had a short telephone conversation with the care worker and then told Mrs D that something was not right.
- Mrs D asked the agency to send over the care worker’s profile with a photograph which they did. Mrs D said she could tell immediately that the profile’s photo did not match the care worker.
- Mrs D spoke to the agency’s manager after receiving the profile and said that the person standing in front of her was a different person. The agency’s manager said that he did not know who the care worker was and they should ask her to leave.
- The Home’s manager then became involved and asked the care worker some questions. The manager went into her office and then later asked the care worker to leave which she did.
- Mrs D says she spoke to the Home’s manager later. She said Mr C’s family paid for four and half hours one-to-one care for Mr C that morning so they would not be happy when they found out what happened. She says the manager told her that the family would not know as she would take it up with the agency.
- Mr C developed symptoms of Covid-19 five days later and died of Covid-19.
- Mrs D says she wrote a statement about what happened but the manager never asked her for the statement. She says she contacted the Home’s compliance manager under the whistleblowing law on 22 April 2020, but the Home never got back to her.
- The Home did not inform Mrs B of the incident but Mrs D informed Mrs B at the end of May 2020.
- Mrs B made a complaint to the Home on 29 May 2020. This started a complaint correspondence between Mrs B and the Home which I have summarised.
- Mrs B’s questions/complaints were:
- Why did the Home not inform her of the incident?
- Did the Home inform the CQC and Adult Safeguarding?
- Why did the Home not call the Police?
- What was the system to check a person’s identity and how did the care worker gain entry?
- What actions did the agency take?
- It thought it had informed Mrs B of the incident.
- The Home made a referral to the CQC and contacted the Council’s Adult Safeguarding team. Adult Safeguarding advised the Home that it was not necessary to call the police as the person had been escorted from the premises.
- The Home had a system in place to check an agency worker’s identity. When an agency worker was booked, the agency would email a profile of the agency worker to the Home. This would contain a photograph of the worker.
- However, on this occasion, the person who was booked cancelled at short notice and another care worker was asked to attend. ‘As it was late in the evening the profile was not sent until the next morning. The carer who attended resembled the carer booked and therefore no alarm bells rang… Agency staff have photographic ID cards, however, she looked similar and no-one noticed the discrepancy until later in the morning.’
- ‘An investigation had been carried out by the agency and suitable action taken.’
- It said that the investigation’s ‘overall outcome’ was ‘no found fault against the Home as they acted appropriately.’
- The Home would ensure that agency staff were checked closely to ensure the correct person was attending.
- Last minute replacements would only be accepted from staff who had already worked a shift at the Home so that their profiles were available to check.
- The Home said that Adult Safeguarding had informed them that there was no need to contact the police as the person had been escorted from the premises. That contradicted Mrs D’s account who said the Home called Adult Safeguarding before the care worker left.
- She had never been informed of the incident. Mrs D’s account was that the Home had no intention to inform the family of the incident.
- Why did the Home say that the ‘carer who attended resembled the carer booked and therefore no alarm bells rang’? As the Home did not receive the profile until later in the day, the Home could not have checked any resemblance when the care worker arrived. Mrs D said that, once the profile was received, it was clear they were two totally different people.
- Mr C should have received four and a half hours of one-to-one care on 3 April 2020 and he did not receive this.
- Mrs D said Mr C had been left in a possibly dangerious position on his bed.
- Mrs B wanted confirmation that the imposter care worker’s temperature had been checked in line with the Covid-19 lockdown policy.
- She did not accept the Home’s conclusion that there was no fault and that it had acted appropriately. If this were the case, then the care worker would not have been able to gain access to the Home.
- Mr C was exposed to the risk of neglect and abuse and to the risk of infection from the imposter care worker.
- It could not comment on Mrs D’s statement as it was third party information and the statement contravened the company’s confidentiality policy.
- The Home had a strict policy in place to check agency staff’s identity. Staff were required to sign in and out of the Home.
- The Covid-19 requirements were that staff had to take and document their temperatury and anyone with a temperature higher than 37.8C was asked to self-isolate for seven days.
- It would provide a credit note for the one-to-one hours that were billed for 3 April 2020.
- It had checked the records for 3 April 2020 and on that day, Mr C had his needs met by six different members of staff on 37 different occasions. He received full personal care including continence checks and changes. He was offered three cooked meals, received the necessary fluids and accepted his prescribed medication. He was not neglected and his well-being was not compromised. The Home accepted Mr C did not receive the one-to-one ‘observation’ he should have received. Mrs B’s complaint that Mr C was not protected from the risk of abuse and neglect was unsubstantiated.
- It had stopped using the agency.
- It ensured that all profiles were received before the shift started.
- All staff were required to have indentity badges and received a full induction on their first shift at the Home.
- She noted that the Home had said it would not comment on Mrs D’s statement, but neither had it denied the statement.
- She was aware of the policies of checking the identity of agency staff and the Covid-19 policies, but she wanted to know whether these policies had been followed on the morning of 3 April 2020.
- ‘There had always been an effective system in place to check the identity of staff when they enter our building. We accept that on this occasion the implementation of the system fell short of the standard we expect…’
- Mrs B made her second complaint in September 2020. This related to an incident during the night of 22 April 2020 after Mr C died. On the morning of 23 April 2020 one of the Home’s care workers showed a colleague some photos she had taken of Mr C during the night.
- The colleague became upset by the photos and reported the matter to the Home’s manager.
- Mrs B said:
- This was a breach of Mr C’s privacy and dignity.
- She questioned why the care worker who took the photos was still working at the Home several weeks later.
- She asked why the Home had not informed her of the incident.
- A photo was taken of a resident being transferred into a private ambulance. The photo did not identify the resident.
- The care worker was dismissed for gross misconduct.
- The manager was suspended for not following company policies and for not informing senior management of the incident.
- The Home apologised for the distress caused by the incident.
The Ombudsman’s investigation
- This is the summary of the information I obtained through my investigation.
The Home’s reply to the Ombudsman
- The Home replied to the Ombudsman’s enquiries and said:
- On the morning of 3 July 2020 several staff including the cook rang in sick for the shift. The manager was occupied cooking lunch for the residents and there were two regular staff with the remainder provided by an agency.
- ‘The person attending the Home signed in as the original booked carer, she looked very similar and therefore staff who were concentrating on their residents did not at first notice the problem.’
- The manager spoke to the agency who confirmed that the care worker who was at the Home was not the person booked for the shift.
- The manager then rang Adult Safeguarding while the imposter was in reception. Adult Safeguarding said there was no need to make a formal referral as this was the responsibility of the agency. The Home notified the CQC.
- The Chief Operating Officer (COO) investigated the incident. They ‘looked for the signing sheet and temperature records for the 3rd April. Although al other days were available, the records covering 3rd April were missing from the file.’ It was Mrs D’s role to file these records but as she had left the employment of the Home, the Home could not find out why the records for 3 April were missing.
- The Home’s manager said she had spoken to Mrs B to inform her of the incident on 3 April but there was no documentary evidence regarding this.
- The agency was informed by the Home’s manager that the agency was required to report the incident to the police, Safeguarding and the CQC.
- In terms of the second complaint, the COO said the senior management was not informed of this incident until the CQC informed them after an inspection of the Home on 16 September 2020.
Incident report for 3 April 2020
- The Home sent me its report for the incident 3 April 2020. This said:
- The manager had contacted the Adult Safeguarding Team who advised: ‘this will be raised as an organisational safeguarding against [the agency] and that [the agency] need to raise a CQC notification. Advised to dismiss member of staff immediately, myself and [Mrs D] escorted her off site.’
CQC referral dated 3 April 2020
- The Home’s referral to the CQC said:
- The ‘abuser’ had been ‘referred to safeguarding, removed from the vicinity or residents, escorted from the building.’
- The imposter care worker had not delivered any care that morning ‘as she had been constantly sitting down stating she felt unwell.’
- ‘Contacted safeguarding for advice, advised to escort the person off the premises which was done immediately, they are going to raise it as an organisational safeguarding against [the agency] and [the agency] also need to raise a CQC notification.’
Mr C’s care plan
- Mr C’s plan said:
- Mr C had suffered a fall in the past which fractured two of his vertebrae.
- Staff had to use a slide sheet to assist Mr C from his bed. He used a stand aid to move from one area to another with two members of staff in assistance.
- He needed constant supervision as he thought he could still walk unaided, which put him at risk of falls.
- He had cognitive impairment and needed support in all areas.
- He needed one-to-one support every day in the morning from 7:00 am until 1:30 pm.
Mr C’s care records
- The Home records the actions of the care staff electronically. The care record shows the name of the care worker, the time they recorded the action and the action they took.
- There was no record showing any action by the imposter care worker so all the actions were by the Home’s other care workers. The record showed that, on 3 April 2020, one of the care workers checked Mr C at 08:42 and noticed that he was awake and content. The same care worker offered Mr C a glass of water at 09:13. At 10:32 a nurse offered Mr C fruit juice and medication. And the same care worker from before then gave Mr C his breakfast and then his personal care at 11:04.
- To put this into context, the person providing most of the care that morning was also the person who alerted Mrs D that she was concerned about the imposter care worker which then led to the alarm being raised.
Information from the agency
- I spoke to the manager of the agency. He said:
- He explained the procedure for sending over an agency care worker to work at a care home. He said that, if it was the first time the person had worked at a particular care home, then the agency would send over this person’s profile to the care home and this profile included a photograph. The agency would only send over the profile the first time as it expected the care home to keep the profile on their files for any subsequent visits.
- He confirmed the telephone conversations on 3 July 2020 that Mrs D described. He said he was surprised that the Home would complain about the care worker as she was an experienced worker. As soon as he spoke to the care worker, he realised that she was not the person she pretended to be.
- He said he also had conversations with the Home’s manager later on. I asked whether the Home’s manager had advised him to ring Adult Safeguarding and the police, but the agency’s manager said he could not remember.
- He then tried to speak to the care worker who was meant to attend. When he finally got hold of her, she admitted that she had sent her sister to the Home instead of going in herself as she was not feeling well.
- The agency care worker was suspended immediately and later dismissed. The agency also made a DBS referral relating to this person. The agency did not involve the police or the Adult Safeguarding Team.
Information from the Council
- I asked the Council for any details of the call made on 3 April 2020. The Council’s Adult Safeguarding Team said there was no record of this customer on the council’s system therefore it was ‘unlikely that advice was given to the Home on this matter.’
- The Home has admitted that it did not follow the correct process when the imposter worker entered the Home on 3 April 2020. I agree there was fault. There is no evidence that the Home properly checked the care worker’s identity when the person started work in the morning.
- The Agency sent over the person’s profile later in the morning which suggested that the Home did not have a copy of the profile. As soon as the profile was sent, it was clear that the imposter was not the person on the profile.
- I appreciate that care homes are not high security buildings and that it would be unlikely for someone to try to pretend to be a care worker. Nevertheless, there was a procedure in place and the Home did not follow it.
- This was more concerning as the incident occurred during the Covid-19 restrictions which meant access to care homes was restricted but also meant that care homes had to put in further checks of staff, such as checking the temperature, when they started work.
- The Home should have taken the imposter’s worker’s temperature before she started work and should have kept a record of doing so. The Home has not provided any evidence that this happened and this was fault.
- In my view, the Home made the situation worse by the actions it took once it realised what had happened.
- I believe Mrs B when she says nobody called her about the incident. I have also read Mrs D’s statement and I believe her when she says the manager told her she would not inform Mrs B. Therefore, there was fault in the Home’s failure to inform Mrs B or any family member of the incident.
- In terms of the immediate response, the Home said it was following the Council’s Adult Safeguarding Team’s advice. However, there was no record of the call to the Council and the Council said it was unlikely the advice was given.
- If the call was not made, this would be a serious concern as it would mean that the Home had not contacted the Council’s Adult Safeguarding Team for advice but had also not told the truth to the CQC and the Ombudsman about making the call to the Council. However, I accept the Council said it was ‘unlikely’ that advice was given, but, presumably not impossible as it may be that the Council did not keep a record of the call.
- I am of the view that there was also fault in the Home’s responses to the complaints about the incident.
- I am not clear why the Home did not admit the error from the outset. The refusal to accept responsibility meant that Mrs B had to continue to write letters to point out the errors and inconsistencies in the Home’s responses. The Home did not admit it was at fault until the final response on 28 August 2020.
- The Home frequently replied to say that there were policies in place (for checking the identity of an agency worker or for Covid-19), but that was not a satisfactory response when the Home could not provide evidence that the policies had been followed in this particular case.
- I also do not understand the Home’s refusal to comment on Mrs D’s statement. Mrs D was a first-hand witness and she had tried to raise the matter directly with the Home. The Home should have commented on the statement as there was no reason to believe the statement was not true. Its refusal to do so added to Mrs B’s frustration and gave her the impression that the Home was not willing to fully respond to the complaint.
- I am also concerned by the inconsistencies in the Home’s accounts of what actions it took on 3 April 2020. For example, the Home initially said the Council’s Adult Safeguarding team advised the Home that it did not need to call the police because the imposter worker had been escorted out of the building. The Home later admitted that it rang Adult Safeguarding when the imposter worker was waiting in reception which contradicted the initial complaint response.
- Similarly, the Home continued to say the imposter resembled the agency worker who was hired, which implied the Home had carried out an initial check when the imposter agency worker started work. However, the imposter did not resemble the care worker who was hired from the agency as it was clear that they looked entirely different as soon as the profile photo was sent over. That suggested that no checks were done when the imposter first started work.
- Mrs B also complained that Mr C was put at risk of neglect on 3 April 2020.
- The Home said Mr C had received support from six different members of staff on 37 different occasions on 3 April 2020. That may well be the case but the fact remained that, for several hours in the morning on 3 April 2020, Mr C should have been receiving one-to-one care from a trained care worker and this did not happen.
- Mr C’s care plan showed that supporting Mr C was not straightforward, particularly in terms of his mobility. He needed two carers to move him and they had to use sheets and a stand. Mr C’s care records showed there was a clear gap in the care Mr C received in the morning of 3 April 2020. Mr C did not start receiving the care until 11:00 am. Mrs D said Mr C was found lying in a possibly unsafe position on the bed.
- Therefore there was evidence that Mr C was exposed to the risk of an untrained worker for several hours that morning. This risk was made worse by the fact that this happened during the height of the Covid-19 crisis and there was no evidence that the imposter care worker’s temperature had been tested, in line with the correct procedures.
- Therefore I uphold the complaint that Mr C did not receive the appropriate one-to-one care he should have been receiving that morning and that he was at risk of neglect during that time.
- In terms of the second complaint, the Home has already upheld that complaint and I agree that was fault. The first fault was the actions of the care worker who took the photograph. The second fault was the manager’s decision not to inform the family of the incident.
Injustice and remedy
- Sadly, Mr C, who suffered the main injustice from the Home’s fault has passed away and therefore any injustice to him cannot be remedied.
- However, I accept that Mrs B has also suffered an injustice which is the distress at knowing that Mr C was put at risk and the distress at the breach of his dignity and privacy through the photograph. I am also of the view that the matter was made worse by the Home’s complaint responses which did not provide the answers Mrs B sought which meant so she had to continue to pursue the matter, at a time when she was going through a bereavement.
- I asked Mrs B what she wanted to achieve if the Ombudsman found fault. She says she wanted a frank written admission to the fault from the Home, a sincere written apology, financial compensation and answers to some of the questions that remained unanswered.
- The Ombudsman is of the view that distress cannot generally be remedied by a payment, but we can seek a symbolic amount to acknowledge the impact of the fault. The Ombudsman usually pays between £100 and £300 for distress and I am of the view that £150 is an appropriate payment for the distress Mrs B suffered. I also recommend the Home gives Mrs B a time and trouble payment of £150 as she had to spend a lot of time and effort to pursue her complaint.
- The Home has already explained what service improvements it has made to ensure that there is no repeat of what happened to Mr C. The CQC is the best organisation to address any concerns about the Home’s practice and I will share this decision with the CQC so they can use it as part of their monitoring role.
- The Home has agreed to take the following actions within one month of the final decision:
- The Home will write a letter to Mrs B to apologise and to acknowledge the fault.
- The Home will pay Mrs B £300 to reflect the distress caused by the fault and the time and trouble she went through to pursue the complaint.
- 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.
Investigator's decision on behalf of the Ombudsman