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Bury Metropolitan Borough Council (20 013 687)

Category : Adult care services > Residential care

Decision : Not upheld

Decision date : 09 Dec 2021

The Ombudsman's final decision:

Summary: it was not fault for the Council-commissioned care home not to inform Mrs X when her mother had a fall in the shower because her mother had capacity at the time and did not sustain any injuries or need medical attention. We have not upheld Mrs X’s complaint that her mother’s mobility deteriorated during her temporary respite stay because care home staff did not give her sufficient support and encouragement to mobilise.

The complaint

  1. Mr & Mrs X made this complaint on behalf of Mrs X’s mother, whom I shall call Mrs A. Mr & Mrs X registered a Lasting Power of Attorney (LPA) in October 2019 to make decisions about Mrs A’s health and welfare after the events in this complaint. We consider Mr & Mrs X are suitable to make the complaint on Mrs A’s behalf.
  2. Mr & Mrs X complained about the care Mrs A received during a temporary respite stay in a residential care home between August and September 2019. The Council commissioned the placement at Elmhurst care home for Mrs A. She paid the full costs of the care.
  3. They complained specifically that:
    • Mrs A’s mobility deteriorated during her stay because staff did not support and encourage her to walk with a frame and she was often left in a wheelchair;
    • Mrs A had a fall in the shower due to faulty equipment and the care provider did not inform Mrs X at the time about this incident.
  4. Mr & Mrs X say Mrs A could not manage when she returned home with a domiciliary care package and she had to move prematurely into permanent residential care. Mr & Mrs X hold Elmhurst responsible for the deterioration in her mobility and independence. They want the Council, as the commissioners of the service, to accept responsibility and meet the additional ongoing costs of Mrs A’s care.

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The Ombudsman’s role and powers

  1. 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)
  2. 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.
  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. We normally name care homes and other 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)
  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)

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How I considered this complaint

  1. I have spoken to Mr & Mrs X and considered the information they gave me.
  2. I made enquiries to the Council and considered relevant records from the Council and the care provider.
  3. Mr & Mrs X, the care home and the Council took the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The background

  1. At the time of these events, Mrs A was in her late seventies. She had been caring at home for her husband, Mr A, who has dementia, with assistance from care workers.
  2. In mid-August 2019 an officer from the Council’s Rapid Response team visited Mrs X to complete an urgent assessment. Mrs A had fallen three times at home in the past ten days. Two falls were on the stairs. Mrs X says these occurred when Mrs A was hurrying downstairs to answer the door to her husband’s care workers.
  3. The assessment report noted Mrs A’s chronic health conditions. In terms of mobility, it said she could not manage the stairs at home and had reduced mobility. It noted that the ambulance service had already referred Mrs A to the Falls Service. The report described Mrs A’s baseline mobility as “independent” but that she needed to use a wheeled Zimmer frame in the home. It said she needed 1:1 support to manage the stairs and supervision to avoid the risk of falls.
  4. The agreed outcome was that Mr & Mrs A needed a short-term respite placement because Mrs A could not continue caring for her husband at home. Mrs A participated in this assessment and had capacity to make decisions about her care at the time.
  5. The Council arranged a temporary respite placement for Mr & Mrs A at Elmhurst which started on 15 August 2019. Mr & Mrs A paid the full costs of the placement.
  6. The Council social worker referred Mrs A to the adult community physiotherapy team on 2 September 2019. A further referral was made to the Falls Prevention Service on 4 September. Mr & Mrs X later arranged for a private physiotherapist to assess Mrs A at the care home in mid-September to expedite her return home due to the long waiting time for an NHS physiotherapy assessment.

Mr & Mrs X’s complaint about the deterioration in Mrs A’s mobility

  1. Mrs X says Mrs A arrived at the care home by ambulance in a wheelchair. She says this was for the convenience of ambulance staff but believes it may have created the wrong impression about Mrs A’s mobility level.
  2. Mrs X said Mrs A could manage to walk up the stairs independently at home on the day before she was admitted to Elmhurst. She could also wash and dress herself. Mrs A also managed to walk between rooms on the ground floor.
  3. Mrs X says Mrs A had some bruising from the recent falls at home but did not sustain any injuries which would affect her mobility.
  4. Mr & Mrs X visited Mr & Mrs A every day while they were in Elmhurst. Mrs X says they delivered two Zimmer frames to the care home for Mrs A. They say one disappeared and the other was not used. They said they usually found Mrs A sitting in a wheelchair when they visited because staff had not transferred her to a comfortable armchair in the lounge. They said she was sometimes crying because she had been left in the wheelchair. They do not consider staff did enough to help Mrs A maintain her mobility. On their visits they observed staff helping other residents to walk with Zimmer frames.
  5. On 6 September Mr & Mrs X spoke to the care home manager to express concern that Mrs A was not mobilising. An entry in the care home records notes this conversation. From then on, Mr & Mrs X says staff did spend more time helping Mrs A walk with the frame.
  6. Mr & Mrs X say that by the time Mrs A returned home on 25 September she could no longer manage the stairs. They arranged home care support, moved her bed downstairs to the living room and provided a commode.
  7. Mrs A later moved to another care home as a permanent resident because she could not live independently at home.
  8. I have considered the care home’s records. It completed a moving and handling assessment for Mrs A when she was admitted on 15 August. It noted a reduced ability to walk and that she needed to use a wheeled Zimmer frame to mobilise. It said she had to be supervised due to the risk of falls. The overall risk assessment was “low” meaning she was likely to be able to move independently or with minimal assistance. She did not need assistance with transfers from bed or a chair.
  9. Mrs A had a ground floor bedroom with en suite bathroom. There was level access to the communal lounge and dining facilities.
  10. A member of staff prepared Mrs A’s Support Plan on 23 August. Under the heading “Social Needs”, it noted Mrs A had said she did not wish to participate in physical activities because she was unable to mobilise. Under the section “personal safety and risk” it recorded Mrs A said she was not as mobile as she had previously been and could not stand unaided. The section on mobility said Mrs A could not mobilise independently and needed to use a wheelchair following recent falls. Mrs A signed the Support Plan to confirm she understood and agreed with it.
  11. The moving and handling assessment was reviewed on 24 August. It recorded the following changes:
    • Mrs A found it difficult to move from a sitting to a standing position. She needed to use a stand aid with assistance from two care workers;
    • She could still mobilise with a wheeled Zimmer frame but needed a wheelchair over distance;
    • The risk assessment was changed to “medium” meaning Mrs A was likely to be able to move with moderate assistance.
  12. The risk assessment was reviewed again in September 2019 but it was not changed.
  13. The care home’s daily records log the observations staff made about Mrs A’s mobility between August and September 2019. The daily records do not always make it clear whether Mrs A walked with assistance or was transferred by wheelchair between her bedroom and the communal areas. I found the following entries:
    • Staff took Mrs A to the lounge in a wheelchair on 17 August where she refused to transfer to a chair;
    • Mrs A walked from her room to the lounge using her walking frame on 18 August;
    • Mrs A transferred to a comfortable chair in the lounge in the evening on 19 August;
    • Mrs A was assisted into her wheelchair by two staff on the evening of 20 August and taken to bed;
    • Mrs A was taken to breakfast in a wheelchair on 21 August;
    • Mrs A walked to the dining room for breakfast on 22 August and then asked to sit in a wheelchair in the lounge;
    • Mrs A was not very steady on her legs when being transferred from her bed to the commode in the night on 22 August;
    • Mrs A was taken to breakfast in the dining room in her wheelchair on 23 August;
    • Mrs A was very shaky and struggled to stand on the evening of 23 August;
    • Mrs A was taken to breakfast in her wheelchair on 29 August;
    • A member of staff offered to help Mrs A transfer from her wheelchair to a chair that afternoon but Mrs A said she preferred to sit in the wheelchair;
    • Mrs A was taken to breakfast by wheelchair on 4 & 6 September;
    • Mrs A was transferred from a wheelchair to a comfortable chair in the lounge on 9 September;
    • Mrs A was transferred to a wheelchair on the morning of 10 September;
    • Mrs A was transferred from a wheelchair to a comfortable chair on 11 September;
    • Mrs A was assisted to the toilet using her walking frame;
    • Mrs A used her walking frame before being assisted into her wheelchair;
    • Mrs A walked to the toilet using her frame on 17 September;
    • Mrs A was taken by wheelchair to breakfast and later walked with support from a carer from the dining room to the toilet using the frame;
    • Mrs A walked about 50 yards with her walking frame with support from staff on 20 September;
    • Mrs A walked from her room to the dining room on 23 September – staff observed she was walking really well.

The accident in the shower

  1. 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.
  2. Regulation 15 says care providers must ensure the equipment used to deliver care and treatment is clean, suitable for the intended purpose, maintained, stored securely and used properly.
  3. Regulation 20 sets out the duty of candour – this is the duty to be open and transparent when an incident occurs. Care providers must notify “the relevant person” when a “notifiable safety incident” occurs. The “relevant person” is the person who was harmed, or if the person lacks capacity, the person lawfully acting on his or her behalf. The regulation defines a “notifiable safety incident” as one which meets all the following criteria:
    • it is unexpected or unintended; and
    • it occurred during the provision of a regulated activity; and
    • in the reasonable opinion of a healthcare professional, the incident appears to have resulted in, or requires treatment to prevent:
      1. the death of the person - directly due to the incident, rather than the natural course of the person's illness or underlying condition;
      2. the person experiencing a sensory, motor or intellectual impairment that has lasted, or is likely to last, for a continuous period of at least 28 days
      3. changes to the structure of the person's body
      4. the person experiencing prolonged pain or prolonged psychological harm, or
      5. a shorter life expectancy for the person using the service.
  4. The Deputy Manager or Manager carries out a weekly inspection of the building to check the premises and equipment. This includes all the residents’ bedrooms, bathrooms and furnishings and fixtures. Elmhurst’s records show a manager inspected Mrs A’s bedroom and bathroom on 15 September, the day before the accident. No concerns were recorded then on the form.
  5. The care home had completed a bathing and showering risk assessment for Mrs A. Along with a set of standard control measures to reduce risks, it said Mrs A needed two care workers to assist her in the shower due to the risk of falls. Staff had to check the shower chair and other equipment was fixed and in good working order.
  6. On 16 September two care workers were helping Mrs A to shower. When she sat on the fixed shower chair, it came away from the wall causing her to fall to the floor. Fortunately Mrs A was not injured or bruised and she did not need first aid treatment or medical attention. Mrs A held on to the grab rails while the carers helped her up. They then completed her personal care by strip washing her.
  7. A member of the care home staff completed an incident report that morning. She described the cause as faulty equipment and noted Mrs A was not injured. Mrs X was not informed of the accident. The manager completed the report and asked the maintenance team to fix the shower chair. Mrs A’s moving and handling risk assessment was also reviewed after the accident.
  8. On the following day, a manager updated the incident report form to confirm that the shower chair in Mrs A’s room had been fixed, Mrs A was fine and no further action was required.
  9. Elmhurst said Mrs A’s accident was unexpected and there had been no previous concerns about the safety of the shower chair. Mrs A did not exceed the weight limit. It said there had been no similar incidents before or since in Mrs A’s room or other residents’ bathrooms.
  10. Mrs A did not tell Mrs X about the accident at the time. Mrs X only found out several months later when she obtained a copy of Mrs A’s care records. She was very upset that the care home had not informed her at the time about the accident. She believes it deliberately concealed it to cover up its negligence.
  11. The Council responded that, at the time of the accident, Mrs A still had capacity to make decisions about her health and welfare and Mr & Mrs X had not yet registered their Lasting Power of Attorney with the Office of the Public Guardian. As Mrs A did not sustain any injuries or serious harm, it was not a notifiable safety incident and the duty of candour did not apply. As Mrs X was visiting Mrs A every day, they left it to Mrs A to decide whether to tell her about the accident.
  12. The Council says that if Mrs A had been injured in the incident, staff would have contacted the relative or next of kin with her consent. And if the accident involved a resident who lacked capacity, it would have informed the person who had Lasting Power of Attorney for health and welfare.
  13. In response to our enquiries, the Council said the care home will review its admission document to record clearly from the outset which information a resident who has capacity wants staff to share with relatives or next of kin. This will provide greater clarity for staff and set clear expectations. The care home has also confirmed it carries out an internal health and safety investigation for any equipment failures or serious incidents as part of its assurance management checks.

The outcome of Mr & Mrs X’s complaint to the Council

  1. Mr & Mrs X pursued a much broader complaint with the care provider and the Council before they complained to us. Among other matters, they expressed concern about delays in the assessment and care planning process as well as concerns about Mrs A’s care at Elmhurst. The scope of our investigation is narrower as it is limited to the two specific issues raised in their complaint to us.
  2. At the final stage of the Council’s complaints procedure, a senior manager decided to make a full refund of the fees Mrs A paid for the respite placement. This was about £4,000. The Council said it made this offer to recognise its delay in allocating a social worker which prolonged Mrs A’s stay at Elmhurst. Mr & Mrs X accepted the Council’s offer. They say it did not provide a remedy for the two specific alleged faults with Mrs A’s care which led them to complain to us.
  3. Mr & Mrs X want an additional financial remedy to acknowledge shortcomings in the care Elmhurst provided to Mrs A and the ongoing additional costs of residential care. They also want the Council to acknowledge the distress and upset they suffered due to the care home’s failings.

My analysis

The accident in the shower

  1. The accident did not meet the criteria set out in paragraph 34 for a “notifiable safety accident”.
  2. It is understandable that Mrs X would like to have known about the accident when it happened. She was upset to read about it several months later when she obtained Mrs A’s care records. However Mrs A had capacity when the accident occurred, and she did not sustain any injuries or need medical attention, so we cannot say it was fault for Elmhurst not to have contacted Mrs X. Mrs A could decide for herself whether to tell her daughter about the accident. The situation would have been entirely different if Mrs A had lacked capacity, or if she had been injured as a result of the accident. I therefore do not find fault.
  3. The Council should pursue its proposal that the care home should have a discussion and record a new resident’s wishes and expectations about disclosure of information to relatives or next of kin at the time of admission. Staff will then have clear guidelines about what information residents want them to share with relatives.

Deterioration in Mrs A’s mobility

  1. I have not found evidence that Mrs A’s mobility deteriorated significantly during her stay at Elmhurst because staff failed to give her sufficient support and encouragement to mobilise with the walking frame.
  2. It is important to consider what the records show about Mrs A’s mobility before she went into Elmhurst. She had suffered extensive bruising following three falls at home and she found it difficult to mobilise safely. The Rapid Response team’s assessment before admission was that she could not safely manage the stairs at home. Mrs X says the falls happened when Mrs A was rushing downstairs to answer the front door. That gives some context for what happened but it does not change the fact that Mrs A was at risk of further falls.
  3. The moving and handling assessment, and the Support Plan which Mrs A signed on 23 August one week after being admitted to Elmhurst, shows she also considered her mobility had reduced prior to her admission.
  4. The care home records show that, on some occasions, Mrs A expressed a preference to remain in the wheelchair rather than transferring to a comfortable chair in the lounge. Staff had to respect her wishes.
  5. The entries in the daily care records indicate that Mrs A mobilised using her walking frame more from September onwards. But they also show she did use the walking frame with support from staff on some occasions in August. The care home was on the ground floor with level access throughout so Mrs A could not practise using stairs to prepare for her return home. The two entries made on 20 and 23 September, a few days before Mrs A left the care home, say she was walking well with her frame and could walk fifty yards. Overall, the evidence does not indicate a marked decline in her mobility during her six week stay.
  6. The care records also show Mrs A needed substantial assistance from care workers with many aspects of her personal care, such as showering, bed and chair transfers and transferring to the commode during her stay in Elmhurst. So even if we had found there was fault in failing to maintain her mobility, it would be difficult to conclude that was the only reason for Mrs A’s move into permanent residential care.

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Final decision

  1. I have completed the investigation and found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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