Summary: Mr X complained about the care provided to his partner by a care provider, acting on behalf of the Council, during a respite stay in 2018. There was no evidence of fault by the care provider causing a significant injustice.

The complaint

1. Mr X complained the care home, acting on behalf of the Council, failed to provide adequate care to his partner Ms Y during an assessment stay between late April 2018 and mid-August 2018. He says it failed to communicate properly with Ms Y, failed to take her to the toilet when she requested this, leaving her in soiled pads, it did not provide her with a call button and failed to keep her room clean, leaving excrement on the carpet for three days. It also failed to record her wish for female only carers. Mr X says this caused him and Ms Y distress and frustration.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the information provided by Mr X and have spoken with him on the telephone. I have considered the information provided by the Council including care records provided by the care home.
5. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Relevant law and guidance

6. 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.
7. One of the fundamental standards under regulation 9 is about person-centred care. This says each person should receive person-centred care and treatment, based on their individual needs.
8. Regulation 10 sets out that service users must be treated with dignity and respect. Staff must respect people’s personal preferences, lifestyle and care choices.
9. The NHS is responsible for completing a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC). Residents who receive funded nursing care (FNC) still have to pay their social care costs, but the NHS pays the care home a flat rate towards the cost of the nursing care.

What happened

10. Ms Y has short term memory issues due to a brain injury and other physical health conditions which affect her mobility.
11. In late March 2018 Ms Y was admitted to hospital. The hospital later discharged Ms Y to the care home for assessment of her long term care needs.
12. The care home completed a care plan for Ms Y. In this it noted Ms Y needed two staff for all aspects of personal hygiene and continence needs. It noted Ms Y used a wheelchair and equipment for transfers.
13. As part of the care plan it completed risks assessments. It noted Ms Y would attempt to get up without assistance and had a tendency to place herself on the floor and crawl, thinking she could walk without assistance. To prevent her coming to harm it listed the bed should be at the lowest setting with a crash mat correctly in place and a bed alarm in place. Staff should also check Ms Y daily for injuries.
14. It also noted Ms Y could become very anxious, vocal and would lash out putting herself and others at risk. It noted Ms Y was better in communal areas with other residents and staff. It listed strategies to address this including to assess Ms Y before approaching, to try and reassure her, to calmly ask what she wanted, to spend time with her and to distract her by talking about Mr X or her previous occupation.
15. In the care plan the care provider noted Ms Y did not sleep well. It noted she may sleep for a couple of hours then wake up and be found off the bed. It noted she may also remove her clothes but would not be aware she had done this. Staff were to assist and offer reassurance.
16. It noted Ms Y required assistance with hygiene, dressing and oral care. Under continence it noted Ms Y was doubly incontinent and required support from staff to maintain hygiene. It noted staff were still to take her to the toilet as required.
17. Under communication the care plan noted Ms Y could communicate verbally but this was not always reliable due to her poor short term memory. It noted staff should always make themselves known and spend time with Ms Y to ensure she could express her wishes. It noted Ms Y could be unsettled when her family were not around.
18. In late May 2018 the NHS and Council carried out an assessment to determine whether Ms Y qualified for continuing health care funding. The assessment concluded she did not have a primary health need but qualified for funded nursing care.
19. In carrying out the assessment a decision support tool was completed. In this it noted Ms Y showed verbal aggression on personal care interventions in the form of screaming and wailing. It noted ‘often she can wail and it is aimed at getting attention as she will forget she has been to the toilet as soon as she gets back from it and demand to go again’. It also noted ‘she will use the call bell inappropriately pressing for no reason or to ask for the toilet as she has forgotten she has just been’.
20. Around this time the Council carried out a review of Ms Y’s care needs. In it the Council noted Ms Y could no longer mobilise independently. She was not accepting of this and often said she was able to get herself around her property. It noted Ms Y was very anxious when she was not around her partner Mr X.
21. The care provider’s daily records from May to August 2018 show Ms Y was often agitated in the absence of family members. She could be unsettled, particularly in the mornings before Mr X visited. Ms Y would also repeatedly ask to go to the toilet even if she had just been. If staff did not take her straightaway Ms Y would shout and scream. Ms Y would also try to get out of the wheelchair to take herself to the toilet. Ms Y would also need changing and assisting to the toilet frequently during the night and would remove her pad and place herself on the floor.
22. The notes show Ms Y was regularly assisted by two female members of staff. on 28 May the notes record Ms Y wanted the toilet. Two male carers advised her she would have to wait as there was only one female carer available to assist her as she could only be supported to toilet by female carers. When two female carers became available, she was assisted to the toilet. The notes from July note on several occasions Ms Y was told she would be assisted to the toilet when two female carers were free.
23. In early July, the care provider reviewed Ms Y’s care plan. They noted that Ms Y would prefer female carers. The care provider noted 'I have explained that in an emergency this may not happen but any and all planned interventions she will be able to have female carers’. It also noted Ms Y still had some behavioral problems and was wanting to go to the toilet all the time.
24. Ms Y was ill for a short period in July 2018. Around this time there were four occasions when, during the night, Ms Y would remove her continence wear, put herself on the floor and pass urine or open her bowels.
25. Mr X contacted the care provider in late July 2018 to complain there was excrement on Ms Y’s carpet on three separate occasions. The care provider met with Mr X to discuss his concerns.
26. In early August 2018 Mr X contacted the Council to complain the care home took two hours to take Ms Y to the toilet. The social worker discussed this with Mr X. The notes recorded the manager had said they did struggle for two carers for toileting at times and Ms Y was constantly asking to go to the toilet. The social worker spoke to the care home manager who said Mr X had complained that Ms Y waited 45 minutes not two hours. They noted Ms Y would ask for the toilet when she just wanted a chat. They were monitoring this. They agreed to hold a review meeting with Mr X the following week. The notes record Mr X was happy with this.
27. In mid-August Ms Y was discharged home with a care package.
28. In November 2018 the Care Quality Commission contacted the Council with concerns Mr X had raised about the care home. It referred to one occasion on 25 July when Mr X said Ms Y was left 45 minutes waiting for the toilet and another on 27 July when she was left two hours before staff were able to attend and she had soiled herself before support was provided. It also said she was left for two hours and 15 minutes on 2 August. It also referred to concerns about the general cleanliness of the floor in her room and the condition of the commode. The Council decided to take no further action as there was no evidence Ms Y was caused harm and she was now living back home.
29. The care provider’s daily records for these dates show:
• On 25 July the rcords state Ms Y was very unsettled in the morning until Mr X arrived. There is no reference to Ms Y having to wait a significant period for the toilet.
• On 27 July the early morning notes record Ms Y was ‘unsettled the majority of the night. Demanding for the toilet and when taken does nothing but screams at staff’.
• Although not one of the dates listed, on 2 August 2018 the notes record Mr X ‘told staff [Ms Y] wanted the toilet – he was told she had not long been (20 minutes prior) and he could see staff were busy assisting residents to eat their breakfast. When staff were ready [Ms Y] was downstairs in the garden. [Mr X] brought her back up unbeknown to staff but did not ask staff again could they assist [MS Y]. He then complained to the nurse leader just after 1pm that she had been waiting over 2 hours for the toilet’.
• On 5 August it recorded Ms Y was assisted to the toilet at 13:10. At 13:40 it recorded Mr X went to the lounge ‘and spoke to one of the carers that [Ms Y] had been waiting 45 minutes for the toilet, the carer told him she went before he came’. They noted Ms Y ‘did not inform any of the staff that she needed to go to the toilet, a carer had been to [Ms Y] to give her an ice cream and she did not state that she required the toilet’. At 15:34 the carer noted Mr X and Ms Y came in from the garden and Mr X said Ms Y needed the toilet. Staff assisted her and she passed a small amount of urine.
30. Mr X complained to the CCG about the care provided to Ms Y. The care provider provided a response to the complaint in July 2019. Its response included that:
• Ms Y was assisted to the toilet and changed at relevant periods throughout the day and night. It found no instances of Ms Y waiting two hours for the toilet. It said there was one instance on 5 August when Mr X approached staff and advised Ms Y had waited 45 minutes. It said staff had checked Ms Y before Mr X arrived. As Mr X was unaware of this it may serve as an explanation for the delay.
• Ms Y must have had a call bell as there were occasions when she used it to summon assistance. It said the use of a call bell was not explicitly documented in the care plan. It said it would do so in future.
• There were a number of occasions Ms Y removed her continence wear which resulted in faeces or urine on the floor. It apologised for the distress seeing this may have caused the family.
• It apologised if Mr X found equipment such as the commode dirty. It said due to the time lapse it could not investigate this fully. However it had robust cleaning schedules in place that are checked on routine visits and inspections.
• It noted Ms Y was at high risk of falls and so specialised equipment was provided to increase her comfort and safety which comprised an ultra-low bed, a crash mat and a sensor mat to alert staff if she rolled out of bed.
• Where possible it tried to accommodate wishes about preferences regarding gender of staff. Given the time lapse it could not recall the precise circumstances of a male staff member attending Ms Y. It said this should be highlighted in the care plan and had been addressed with the manager of the service, to ensure where preferences exist they are clearly documented in the care plan.
• It had documented several episodes of distressed behavior by Ms Y. These episodes were often surrounding the need to use the stand aid and Ms Y’s frustration that she did not think she needed this equipment. Staff noted several different approaches to help reduce Ms Y’s distress. It said Ms Y’s distressed behaviours seemed to be prompted by Ms Y’s frustrations that she felt that she could still walk, her perception that staff were keeping her away from Mr X and around her incontinence at night. It said staff were trained in managing distressed behaviours and this was addressed in the care plan.
31. As a result of the complaint the care provider:
• introduced regular ‘drop in’ dates for relatives to speak with the manager of the service.
• Ensured all residents had a care plan to detail if they could use a call bell or not, with alternative strategies put in place for those who could not.
• Ensured where preferences for particular genders of staff were expressed, these were recorded in every care plan
32. In January 2020, Mr X told the care provider he had made a subject access request and wanted to receive the response before he discussed his concerns further. The care provider decided Mr X did not have the authority to make a subject access request on Ms Y’s behalf and did not release information to him.
33. Mr X remained unhappy and complained to us.

Findings

Communication

34. The care provider had detailed care plans in place describing Ms Y’s needs and how it could meet those needs. It also recognised and completed risk assessments to address concerns relating to Ms Y’s behaviour. The daily records show there were periods when Ms Y would scream and shout and that staff acted in line with the care plan to try and de-escalate the situation. That this did not always work is not evidence of fault.

Continence

35. The care plan noted Ms Y would repeatedly request to go to the toilet and when taken did not always need to go. This was also reflected in the daily records. Ms Y also experienced periods of incontinence and so wore continence products. I would not expect staff to respond to every request Ms Y made if she had been taken a short time previously. Ms Y required two female members of staff to take her to the toilet so there may have been times when she was required to wait but I cannot say, on balance, there was fault causing injustice.
36. It is evident Ms Y had periods of incontinence but I cannot say if this was due to staff not taking her to the toilet or was due to her medical condition which was why Ms Y wore continence products. The records show staff checked Ms Y regularly through the night and day.
37. Mr X has referred to some specific dates where he said Ms Y had to wait for a significant period of time to go to the toilet. On two of those dates there is nothing specific in the records related to this. The records of 2 August and 5 August show Mr X was unhappy Ms Y had to wait for the toilet and he did raise this with staff. The records suggest staff were not clear Ms Y still needed the toilet after they had told Mr X she had been only a short period before. Ms Y did repeatedly ask for the toilet but then not go. It was not fault for staff not to take her straightaway. However it would have been good practice if staff had sought to clarify with Mr X or Ms Y whether she still needed to go once they had finished the tasks they were undertaking.

Cleanliness

38. The daily records show there were occasions when Ms Y removed her incontinence products and soiled the floor. I do not doubt Mr X saw excrement on floor, but I cannot now know whether this related to one or separate incidents or how long this was left. The care provider had regular cleaning schedules in place. It says these are checked on routine visits and inspections and it would continue to monitor cleanliness. Given the passage of time since this incident occurred I cannot see that I can achieve anything more by investigating this issue further.

Call button

39. In response to my enquiries the care provider explained there were three call buttons in each room: a nurse call alarm system attached to the wall; a pullcord in the bathroom and a third attached to a lead plugged into the nurse alarm call system. A sensor mat is connected by way of using a splitter to support a nurse call lead and sensor mat at the same time. It said its records do not indicate Ms Y’s call button was removed at any time. Mr X says a splitter was not fitted in Ms Y’s room. The call button was replaced with a sensor mat, and he was told it was one or the other.
40. I cannot now know exactly what was in place at the time. The evidence shows Ms Y was regularly checked and staff responded to the buzzer. In its complaint response the care provider acknowledged it did not record as standard whether residents could use a call button and it had amended its procedures to ensure this was recorded in future. There is nothing else I could achieve by investigating this issue further.

Female staff

41. When the care plan was reviewed in July 2018, the care provider added Ms Y’s preference for female staff. Although this was not recorded in the care plan previously, the daily records show Ms Y’s personal care was delivered by female staff only. As early as May 2018 a male member of staff recorded they could not support Ms Y to the toilet as she needed to be supported by female staff. Therefore, there is no evidence this lack of recording caused Ms Y a significant injustice.

Summary

42. Given the passage of time and based on the available evidence, I find no evidence of fault by the care provider. There is no evidence Ms Y has suffered a significant injustice from the alleged failings. In addition, the care provider has taken appropriate action in response to the complaint. Although Mr X remains unhappy at the quality of care provided at the care home I do not consider I can achieve anything more by further investigating his concerns.

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Final decision

43. I have completed my investigation as there is no evidence of fault causing significant injustice.

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Investigator's decision on behalf of the Ombudsman