Summary: Mrs X complained about the care Mrs Y received and how the Council carried out a safeguarding investigation. She says this caused harm to Mrs Y and caused her stress and anxiety. The Council was at fault for failing to ensure the Care Provider made proper records of Mrs Y’s personal care and responded appropriately to Mrs Y’s falls. This caused Mrs X distress and uncertainty. The Council will apologise and reminds staff of the correct procedures.

The complaint

1. Mrs X complained about the care her late mother, Mrs Y, received at the Care Home and about how the Council carried out a safeguarding investigation.
2. Mrs X said neglect by the Care Provider led to Mrs Y’s death and the Council failed to ensure management took proper responsibility. She said this caused her stress and anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We investigate complaints about councils and certain other bodies. Where a care provider is providing services on behalf of a council, we can investigate complaints about the actions of the provider. (Local Government Act 1974, section 25(7), as amended)
7. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Falls

11. The Care Quality Commission (CQC) is the statutory regulator of care services. Its Regulations set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet these standards. Regulation 12 states that care and treatment should be provided in a safe way. Providers should produce up-to-date risk assessments and deliver care based on those assessments. They should be updated regularly.
12. The Care Provider uses the FRASE risk assessment tool to determine the risk residents might fall. Risk factors including a person’s medication, history of falls, manner of walking and mobility are all given points. Falls at home are worth two points and falls in a care home are worth one point. Falls outside do not receive any points. A person is low risk if their total points are between 3 and 8. 9 to 12 points mean a person is at medium risk. 13 and above is high risk. The Care Provider adapts its level of support relative to the risk level.

Safeguarding

13. 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 they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
14. CQC guidance on Regulation 12 (safe care and treatment) says care providers must report incidents which have the potential for harm and affect the welfare of people using services. Incident reports should be made internally and to relevant external bodies.

Care

15. The Mental Capacity Act 2005 sets out that 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 based on a diagnosis or unwise decision.
16. Regulation 9 of the CQC Regulations says care and treatment of residents must be appropriate, meet their needs and reflects their preferences. It says care and treatment should only be carried out if a person has capacity and consents to it. The regulation also says people acting on behalf of the resident should be fully informed about their care and treatment.
17. The National Institute for Health and Care Excellence (NICE) sets out quality standards which help care providers to deliver high levels of care. It’s ‘mental wellbeing of older people in care homes’ standard says providers should offer residents opportunities to engage in ‘meaningful activity’. Where possible, this should include activities of daily living. The standard also says the wishes of the person and their family should be considered.
18. CQC Regulation 17 states care providers must keep an accurate and complete record for each resident.

What happened

Falls and safeguarding

19. Mrs Y had dementia and was unsteady on her feet. The Care Provider assessed her as at low risk of a fall.
20. In late January 2020, Mrs Y fell at the Care Home late at night. Mrs Y complained of pain from her elbow and mid-thigh. She said she did not feel the pain was bad enough to need a trip to hospital. Staff helped Mrs Y to stand, then sit in a wheelchair and into bed. They gave her some pain relief and returned 30 minutes later to check on her. The records show Mrs Y was complaining of pain and shouting. The staff checked her leg and found it now showed signs of being broken. The Care Provider called an ambulance and Mrs Y was admitted to hospital for a broken hip.
21. The same day, the Care Provider updated Mrs Y’s falls risk assessment and care plan. The updated falls risk assessment noted Mrs Y had fallen in a care setting, but her points meant she was still at classed as low risk.
22. Mrs Y was discharged from hospital in early February 2020. The Care Provider increased Mrs Y’s falls risk to medium because her manner of walking had worsened and she was less mobile. It updated her care plan again to record staff checked on her every hour instead of every two hours.
23. In mid-February 2020, Mrs Y fell again and landed on the same side as the hip she previously broke. Staff were not present when Mrs Y fell but found her sitting on the floor. The staff did not seek medical advice at the time or contact Mrs X to tell her Mrs Y had fallen.
24. Mrs X became aware of Mrs Y’s fall the following day and asked the Care Provider to get medical help. She began to arrange to move Mrs Y to another care home.
25. The Care Provider made a safeguarding referral to the Council three days after Mrs Y fell.
26. In late February, the Care Provider updated Mrs Y’s fall risk to high because she was now on sleeping pills. It referred Mrs Y to the local falls management team and ordered fall alert alarms for her chair and bed.
27. In early March 2020, a member of staff called Mrs X in the afternoon to say Mrs Y had fallen again that morning. A GP visited Mrs Y in the afternoon to discuss a cough she was experiencing and checked her leg.
28. A few days later Mrs Y was admitted to hospital as she had suffered a heart attack. She later contracted COVID-19 and died.
29. The Council held a safeguarding meeting with the Care Provider and Mrs X in late May. The outcome of the meeting was:
• the Care Provider felt its staff acted appropriately when Mrs Y fell in late January;
• the Care Provider accepted it had failed to respond appropriately to Mrs Y’s fall in mid-February. It should have sought medical attention immediately and had addressed this with the member of staff responsible;
• the Care Provider did not think Mrs Y had fallen in early March. It said this because there was no accident form or body map. A body map is a visual record of where someone is hurt. It spoke to the member of staff who called the GP to visit Mrs Y. They said they requested the visit solely for Mrs Y’s cough and only asked the GP to check her leg when Mrs Y reported pain. The member of staff who called Mrs X did not remember telling her that Mrs Y fell. The Care Provider thought there had been a miscommunication between staff, which led them to incorrectly record a fall had occurred and call Mrs X. It would remind staff about documenting events and communicating properly;
• the Care Provider felt it had properly assessed Mrs Y’s falls risk; and
• the Council accepted the Care Provider’s findings and agreed to close the safeguarding enquiry.
30. The Council says that after the meeting it made its quality monitoring team aware of the issues with the Care Provider’s communication and record keeping. It asked the team to contact the Care Provider.

Care

31. Mrs X was concerned the Care Provider allowed Mrs Y to stay up late. She thought this pattern may have contributed to Mrs Y’s falls risk. Mrs X was also unhappy the Care Provider let Mrs Y help with minor cleaning tasks late at night.
32. I have reviewed the Care Provider’s night records from before Mrs Y’s first fall. Mrs Y preferred going to bed late in the night and often stayed up talking in communal areas. There was only one occasion when the Care Provider recorded Mrs Y helping with the cleaning. However, I note that records from the night of Mrs Y’s first fall state she wanted to help with the cleaning ‘as she normally does’.
33. The Care Provider said Mrs Y liked to help staff and it allowed her to do it because it reproduced normal life. It recognised Mrs X’s concerns and said it would try and divert Mrs Y to other activities in the future.
34. Mrs X says the Care Provider refused to arrange an incontinence assessment for Mrs Y when she asked for one. Mrs X says that by the time she asked for the assessment, she had found Mrs Y sitting in urine and with faeces under her nails on several occasions.
35. The Care Provider said it did not feel an incontinence assessment was necessary. Mrs Y was not incontinent when she came into the Care Home and only needed support toileting after her hip fracture. Staff helped her go the toilet if she needed it and put incontinence pads on her bed.
36. Mrs Y’s hygiene care plan stated she had the capacity and ability to carry out her own personal care but should be encouraged and offered help if needed. Staff should have offered nail care daily. The Care Provider has accepted it did not offer Mrs Y help with her nail hygiene every day but said Mrs Y also refused support and it could not force her. The Care Provider’s records do not state when Mrs Y refused help, or what it did to encourage her. In response to Mrs X’s concerns, the Care Provider reminded staff about the importance of maintaining residents’ personal hygiene and dignity.
37. In October 2020, Mrs X complained to the Council about her mother’s care, including issues she did not complain to the Ombudsman about. The Council responded to her concerns and offered to cancel about £2,600 worth of fees still outstanding.

Findings

Falls

38. The Care Provider acted on behalf of the Council so we consider the Council responsible for any fault.
39. Mrs X feels the Care Provider did not properly assess Mrs Y’s falls risk when she moved into the Care Home. She says this made it more likely Mrs Y would fall. Mrs X says the Care Provider did not account for Mrs Y’s unsteadiness or falls outside the Care Home.
40. The Care Provider uses a point-based risk rating system which relies on the judgement of the assessor to determine the number of points for each risk factor. The Care Provider properly applied the system and found Mrs Y was at low risk before her first fall. After Mrs Y returned from hospital, it updated its assessment when events occurred that would have affected her point score. There was no evidence of fault in how the Care Provider assessed Mrs Y’s risk or used the assessments to inform its care plan. Once Mrs Y was deemed at high risk, the Care Provider took appropriate action to mitigate the risks. It referred her to a falls management team and bought fall alarms. In any event, a risk rating is only an indicator of a person’s likelihood of falls. A higher risk rating cannot prevent a person from falling.
41. Mrs X is concerned about how the Care Provider acted after Mrs Y’s first fall. She says staff should have called for medical help immediately and that they walked Mrs Y to her bed. Records show the Care Provider moved Mrs Y using a wheelchair. But, I consider the Care Provider was at fault for failing to seek medical help straight away. This would have allowed a medical professional to determine whether it was safe to move Mrs Y. However, I cannot say that moving Mrs Y worsened her broken hip, so the injustice is uncertainty for Mrs X.
42. The Care Provider has accepted it was at fault in how it responded to Mrs Y’s second fall. It took appropriate action to address this with the member of staff who failed to seek medical attention. Given there were two instances where staff failed to get medical help immediately after Mrs X fell, I consider a further remedy is appropriate to prevent such a fault recurring. I have set out the recommendation in paragraph 50 (b).
43. I am satisfied that, on the balance of probabilities, Mrs Y did not fall in early March. The Care Provider staff failed to properly communicate the events of the day with colleagues, which mean it incorrectly told Mrs X that Mrs Y had fallen. This caused Mrs X distress and uncertainty. The Care Provider responded appropriately, reminding staff to document events properly and communicate accurately.

Care

44. The Care Provider has accepted it was at fault for failing to offer Mrs Y nail care every day. In response, it reminded staff about the importance of maintaining residents’ personal hygiene and dignity. This was an appropriate action.
45. Mrs Y had capacity to make day to day decisions about her daily routine and personal care. The Care and Support statutory guidance is clear care cannot be given where a person has capacity and does not consent. The Care Provider said Mrs Y would sometimes refuse support with her nail hygiene and it could not force her. However, the Care Provider’s records do not show when Mrs Y refused support or what the Care Provider did to encourage her. This was fault and meant Mrs X cannot be assured the Care Provider took appropriate action to help Mrs Y maintain her nail health and hygiene.
46. Mrs X feels the Care Provider should not have allowed Mrs Y to help with cleaning tasks, particularly late at night. The Care Provider was not at fault. It has a responsibility to help residents live as normally as possible and had no concerns about Mrs Y’s desire or ability to help with cleaning. It ensured she was appropriately supervised and agreed to encourage Mrs Y to do other activities after Mrs X expressed her concerns.
47. The Ombudsman cannot question a Council's decision if it is made without fault. The Care Provider properly considered whether Mrs Y needed an incontinence assessment and provided additional support when her needs increased. It was not at fault.

Safeguarding

48. As the body responsible for providing day to day care for Mrs Y, it was appropriate for the Council to ask the Care Provider to investigate Mrs X’s concerns. The Council properly considered the information the Care Provider produced and agreed with its findings and recommendations. It was not at fault.

Agreed action

49. 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 agreed recommendations with the Council.
50. Within one month of my final decision, the Council will:
1. apologise to Mrs X for the uncertainty caused by the Care Provider’s failure to respond appropriately to Mrs Y’s fall in January 2020.
51. Within three months of the date of my final decision, the Council will:
1. ensure the Care Provider reminds staff they should seek medical advice as soon as possible after a resident falls; and
2. ensure the Care Provider reminds staff they should record when a resident refuses support with personal care and what action is taken in response.

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Final decision

52. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman