Summary: Mrs X complained about the care the late Mrs Y received at Hastings Court (the Care Provider), commissioned by the Council. She said it failed to give her medication properly and to prevent her falling. It also left Mrs Y alone, struggling to breathe and failed to call for medical attention. She said this significantly impacted on Mrs Y’s health and wellbeing. We find the Care Provider did not give Mrs Y her medication properly. It did not monitor Mrs Y adequately following a fall and did not keep adequate records. This put Mrs Y at an increased risk of harm. The Council has agreed to apologise, waive 50% of Mrs Y’s charges and review placements at Hastings Court.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the care her late mother, Mrs Y, received, when she was in a care home funded by the Council. She says the Care Provider:
• gave Mrs Y medication at the incorrect times/intervals.
• gave Mrs Y a laxative twice daily without checking whether it was needed.
• left Mrs Y sitting in a room alone completely soiled and confused with no frame.
• left Mrs Y alone and naked in the shower trying to clean herself.
• failed to respond adequately to Mrs Y having a witnessed fall.
• left Mrs Y alone in a room, struggling to breathe, with her chest rattling and unable to communicate and did not get her medical attention. Mrs X’s brother, Mr Z, found her and called an ambulance and Mrs Y was admitted back to hospital in a critical condition.
2. Mrs X says Mrs Y was admitted to the care home having fractured her pelvis and was at a high risk of falls. She became significantly more confused and her speech deteriorated during her short stay. Mrs X believes this was due to Mrs Y’s medication not being administered correctly. She also had chronic diarrhoea which Mrs X believes was due to the inappropriate use of laxatives. Mrs Y died about three weeks after being admitted to the care home.

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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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). We are satisfied that Mrs X is a suitable person to complain on Mrs Y’s behalf.

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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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

The Care Quality Commission

10. 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.
11. 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.
12. Regulation 9 is about personalised care. The CQC’s guidance on the regulations says:
• “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be”.
13. Regulation 12 is about safe care and treatment. The guidance says:
• “Medicines must be administered accurately, in accordance with any prescriber instructions and at suitable times to make sure that people who use the service are not placed at risk”.
• “The provider must actively work with others, both internally and externally, to make sure that care and treatment remains safe for people using services”.
14. Regulation 17 is about good governance. 17(2)(c) says care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”. The Guidance says that “records relating to the care and treatment of each person using the service must be kept and be fit for purpose. Fit for purpose means they must…be complete, legible, indelible, accurate and up to date…”
15. Regulation 20 is about a duty of candour. 20(1) says “Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”. The CQC’s guidance on this regulation says:
• Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body.
• Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them.
• Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong.

What happened

16. Mrs Y had various long term health conditions which caused her difficulties including with mobility, memory, digestion and bowel function. She needed to take medication for one of her conditions at specific times and intervals. Mrs Y also had medication to ensure she emptied her bowels regularly and did not become constipated.
17. In early December 2019, Mrs Y was admitted to hospital following a fall in which she fractured her pelvis. She had fallen similarly three times in the previous four weeks. While in hospital, she had input from the physiotherapy and occupational therapy teams.
18. Towards the end of December, Mrs Y was discharged to Hastings Court for four weeks residential respite. Hastings Court is run by Hastings Court Limited (the Care Provider). This was funded by the Council.

Medication

19. Mrs Y’s hospital discharge information provided to the Care Provider included a list of medications. The significant medications for this investigation are:
• Co-Careldopa 12.5/50 tablets to be given three tablets (187.5mg) three times a day.
• Laxido one sachet to be given twice a day.
20. The medication administration record (MAR) sheet for the week Mrs Y arrived, shows three tablets of Co-Careldopa 12.5/50 to be given at 8am, 12 noon and 10pm. On the last week of Mrs Y’s stay, it had been changed to 8am, 12 noon and 6pm though there was no record of why this was done. Mrs X says these tablets should be given at strictly five hour intervals but there was no evidence of this information being given to the Care Provider. I looked at the patient information leaflet (PIL) for this medication and did some basic online research. The PIL says “Take them at regular time intervals according to your doctor’s instructions” and “Do not change the times at which you take your tablets…without first consulting your doctor”. The specialist organisation for this condition says “Try to take your medication at the same set times every day as advised by your specialist or [specialist] nurse”. Also “Don’t stop taking or change the dose or timing of your…drugs until you have spoken to your health professional as this can increase your symptoms”. General research suggests intervals should be between 4 and 8 hours. If delayed, this can cause worsened symptoms including loss of balance, confusion and difficulty communicating.
21. The Care Provider said it had not recorded the medication properly at the time it was administered. Instead, it recorded everyone’s medication as being administered at the start of the round. It said it would record the medication properly in future.
22. The medication administration record (MAR) sheet for the week Mrs Y arrived, shows Laxido as to be taken one sachet twice a day. On two days when Mrs Y had loose bowels, the MAR sheet shows the Laxido was not given. Mrs Y queried the dose of Laxido and the Care Provider’s show it checked with Mrs Y’s surgery who confirmed two sachets per day. It says when Mr Y took in a new supply of Laxido to the Care Provider, the instructions said one sachet per day. When the Care Provider restarted the Laxido when Mrs Y’s bowels settled, it restarted at the changed dose of one sachet per day.

Left alone and soiled

23. On Mrs Y’s second day at Hastings Court, Mrs X says she arrived to find Mrs Y alone and naked in the shower trying to wash herself at 10:30 am. However, the Care Provider’s daily notes say Mrs Y was relaxing on her bed at 8:43 and again at 9:43. It says at 10:02 Mrs Y did the cleaning with help, her ears were checked, she undressed with help, she dressed with help. Then she washed her hands with help and chatted to other staff or residents for 30 minutes. Her eyes and toenails were checked and her footware checked, her hair brushed, pad changed and moved to another room. She was helped with walking for 30 minutes. All these entries were recorded between 10:02 and 10:04. The Care Provider’s response to the complaint say Mrs X arrived at 9:31 and found Mrs Y at the sink in her ensuite. It also says ten minutes later, staff provided personal care for 21 minutes and Mrs X then went with Mrs Y to the bistro at 10:04 for one hour. Mrs Y was not then checked until 2pm.
24. Five days later, Mrs X’s daughter arrived and found Mrs Y in the sitting room known as “the shed”, heavily soiled and without a walking frame. Mrs X said it was “totally undignified and disgraceful”, and “totally unhygienic for other residents". The Council says Mrs Y had gone there independently without her walking frame; she did not always ask for help. The Care Provider said it was not providing a 1:1 service to Mrs Y and she was not under a frequent monitoring regime. Mrs Y often went to the communal rooms but would not have been able to get back to her room in time when she had loose bowels. On this afternoon, Mrs Y had to have soiled clothes changed and washed and had a shower twice in quick succession. The notes do not mention Mrs X's daughter visiting or that she alerted staff to Mrs Y’s situation. Mrs Y had three entirely liquid stools that day and had loose stools including one entirely liquid stool the previous day. The Care Provider said this was not due to an infection, but to the Laxido.

Falls

25. Mrs Y’s care plan notes that she had a history of falls and had been known to lose her balance. While in bed she had a sensor mat by her bed to alert staff so they could support her if she got up; this was to be checked by staff each night. Records show this was done regularly. The care plan also notes Mrs Y might forget to use her walking frame and was at a higher risk of falls without aids. Staff were to make sure her room was clear of tripping hazards. It also says staff were to encourage Mrs Y to be in the lounge during the day as this would be safer. The care plan also notes that in the event of any concerns about Mrs Y’s health, staff should consult with the nurse on duty. The day after she was admitted, staff checked Mrs Y’s observations. Her oxygen level was 98%, blood pressure 129/67 and pulse 69.
26. About one week after she arrived at Hastings Court, Mrs Y was in the TV lounge where staff were present and slipped from her chair to the floor. A nurse checked her and with prompts, Mrs Y rolled over and got up using the chair. Staff gave her paracetamol because she said it hurt a bit. At just after 1pm, her oxygen level was noted as 80%, blood pressure 104/63 and her pulse 82. A short while later, Mrs Y ate a lunch of pork chop with vegetables and mashed potatoes and had a hot drink. She had another hot drink at around 3:30pm.

Return to hospital

27. Just after 5pm on the day Mrs Y fell, Mr Z visited and was concerned about her. The senior carer arranged for a nurse to see Mrs Y. Mrs Y was awake and sitting in a chair in the lounge. Mr Z was concerned about the way she was clenching and sucking her lips together which he said was odd. Mrs Y could not hold a glass of water but took a sip with help. The nurse checked Mrs Y’s temperature, pulse, blood pressure and oxygen saturation level, which was 80. The accounts of what happened next vary slightly though only Mrs X’s account is significantly different. The variation is mostly around the options the nurse presented to Mr Z. I have considered these views in detail, including statements from different staff members and the call transcripts. I have decided the following is the most likely sequence of events.
28. The nurse told Mr Z that Mrs Y needed medical attention because of her low oxygen levels. She told Mr Z it was too late in the day to get a GP visit. She said the out of hours service was an option but this would take a long time. Also, the local NHS walk in centre, or he could take Mrs Y to the accident and emergency unit. Mr Z decided he would take Mrs Y to the accident and emergency unit. A care worker planned to follow and help with transferring Mrs Y to a wheelchair and stay with her while Mr Z parked his car. However, Mrs Y could not stand so the nurse called 999. She told the ambulance control operator (ACO) that Mrs Y was breathing and conscious, her oxygen level was low, and she had very rapid breathing. The nurse explained the phone was not near Mrs Y, and she could not see her. The ACO asked to speak to Mr Z on his mobile phone, as he was with Mrs Y. The nurse gave the ACO his number and they telephoned Mr Z. Mr Z told the ACO Mrs Y was not responding and had long pauses between breaths. A paramedic spoke to Mr Z because it was unclear whether Mrs Y was conscious or unresponsive. During the conversation, the paramedic realised Mrs Y was conscious and asked if she had been bleeding and about the earlier fall. An ambulance arrived at 16:44. The ambulance service report notes Mrs Y had a “good colour” and was confused. A paramedic gave Mrs Y “aggressive” oxygen therapy and her oxygen level improved to 99%. They asked Mrs Y to touch her nose, lift her legs up and down, grip a paramedic’s hands and hold her arms out and she did all these. They noted a “congested chest” with “infection markers” and queried aspiration. They took Mrs Y to hospital at 17:31.
29. Four minutes later, the ambulance arrived at the hospital where she was described as appearing “drowsy but comfortable”. Mrs Y was admitted with aspiration pneumonia. Hospital records show Mr Z told the hospital he was unhappy with the Care Provider and a doctor explained that anyone can get pneumonia. Hospital staff raised no concerns about Mrs Y’s condition and the care she had received following this conversation. Mrs Y was treated with antibiotics and, one week later, was noted to be end of life.
30. Sadly, Mrs Y died just over two weeks after she was admitted to hospital.

Was there fault which caused injustice?

Medication

31. The Care Provider had no information about the times at which Mrs Y had been taking her Co-Careldopa medication. The PIL said “Take them at regular time intervals according to your doctor’s instructions” and “Do not change the times at which you take your tablets…without first consulting your doctor”. It did not administer the medication in line with this advice. The timings were neither as previously taken, nor at regular intervals. It should have asked about the times she had been taking it so it could have avoided any potential increase in symptoms, but it did not. Mrs Y was only at Hastings Court for 10 full days and her increased confusion could also have been due to the move, or low oxygen saturation levels from the chest infection. However, on the balance of probabilities, I have concluded the change of times, and irregular timings, caused Mrs Y an increased risk of harm and negatively impacted her health and wellbeing.
32. The Care Provider says it has already taken action to ensure it records medication for each individual at the time it is administered. However, it is also important that people receive their medication at the time it is due even if this does not fit with set medication round times.
33. In relation to the Laxido, the Care Provider was not responsible for prescribing the medication and was only responsible for administering it as prescribed. It did this and raised a query with the surgery when it had concerns. This was the right way to deal with this and I found no fault in the way the Care Provider administered the Laxido.
34. The Care Provider’s actions around Mrs Y’s Co-Careldopa medication are a potential breach of regulations 9 and 12. I will therefore send a copy of the final decision statement to CQC.

Left alone and soiled

35. I am concerned that the Care Provider’s records are thrown into question around this. It is clear all the tasks recorded at 10:02 did not happen between then and 10:04 when it says Mrs X went to the bistro with Mrs Y. The Care Provider has drawn on information I have not seen, saying Mrs X found Mrs Y at the sink; this is not mentioned in the care notes. However, even if Mrs X did find Mrs Y in the shower alone, I cannot say the Care Provider could have prevented that.
36. On the occasion Mrs X’s daughter found Mrs Y soiled in the sitting room known as “the shed”, Mrs Y had walked there independently. As the Care Provider said, it was not providing a 1:1 service to Mrs Y and she was not under a frequent monitoring regime. If, as Mrs X and the Care Provider believe, the diarrhoea was caused by the Laxido, there was no need for infection control procedures. While I found no fault based on the Care Provider’s record of what happened, I am not confident that the records accurately reflect the Care Provider’s actions. Because the records should provide an accurate and contemporaneous record of events and does not, I found fault here and uphold Mrs X’s complaint about this. This is a serious concern, and a potential breach of regulations 17 and 20.

Falls

37. Mrs Y was able to mobilise independently although she was at risk of falls. She was admitted to Hastings Court for residential respite; she was not under 1:1 support and did not have nursing needs. The Care Provider had suitable care plans in place to minimise these risks and records suggest these were followed. However, I cannot fully rely on the records for the reasons given previously.
38. The Care Provider noted Mrs Y’s oxygen levels were low compared to usual, at 80%, after the fall, but it did not take adequate action. It did not put monitoring in place for this. If a level of 80% meant Mrs Y needed medical attention at 5pm, it also needed medical attention at 1pm. At this time, a GP visit may have been possible. While I consider this to be fault, I cannot say this would have changed the outcome as it is likely Mrs Y already had the infection that caused her admission to hospital. However, I consider the delay probably increased the risk of harm to Mrs Y. This is a potential breach of regulations 9 and 12 and I have therefore upheld this element of Mrs X’s complaint.

Return to hospital

39. It is clear from the evidence from third parties that Mrs Y was not unresponsive and was not admitted to hospital in a critical condition. Mr Z did not call the ambulance. I am concerned that a member of staff was not able to speak to ambulance control from nearby Mrs Y. It cannot be unusual that a care provider needs to call an ambulance and is vital that an accurate assessment can be made over the phone. I have considered this and believe it is likely to be a potential breach of regulation 9. A care provider should not need to rely on an outsider with a mobile phone to enable adequate assessment by ambulance control. However, I do not uphold Mrs Y’s complaint about this aspect.

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Agreed action

40. 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 made recommendations to the Council and the Council has agreed to complete these.
41. To remedy the injustice identified above, I recommended the Council:
• Apologise in writing to Mrs X setting out the faults identified above and the actions the Council and Care Provider will take to avoid similar faults in future.
• Waive, or refund to Mrs Y’s estate, 50% of the charges for Mrs Y’s short stay.
• Review any Council funded residents at Hastings Court with a particular focus on the accuracy of daily care notes in supporting whether needs are being met. Also, that time sensitive medication is administered as required.
• Consider whether more action needs to be taken before the Council makes further placements with Hastings Court.
• Provide evidence of these actions to me within two months of the final decision. Suitable evidence would include a copy of the apology letter, confirmation of the waiver or refund, and an action plan showing progress on the remaining actions.

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Final decision

42. I have completed my investigation and uphold Mrs X’s complaint that the Care Provider:
• gave Mrs Y medication at the incorrect times/intervals.
• left Mrs Y alone and naked in the shower trying to clean herself.
• left Mrs Y sitting in a room alone completely soiled and confused with no frame.
• failed to respond adequately to Mrs Y having a witnessed fall.
43. I do not uphold Mrs X’s complaint that the Care Provider:
• gave Mrs Y a laxative twice daily without checking whether it was needed.
• left Mrs Y alone in a room, struggling to breathe, with her chest rattling and unable to communicate. Mrs X’s brother, Mr Z, found her and called an ambulance and Mrs Y was admitted back to hospital in a critical condition.

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Investigator's decision on behalf of the Ombudsman