The Ombudsman's final decision:
Summary: Mrs C complained to us about the care her father received in the care home he lives, which has been arranged and commissioned by the Council. I found there were some shortfalls with regards to his care, which resulted in an injustice to him and distress to Mrs C. The Council has agreed to apologise for this and provide a financial remedy.
- The complainant, whom I shall call Mrs C, complained on behalf of her faher, whom I shall call Mr F. Mrs C complained about the care her father received at a care home placement arranged for and commissioned by the Council. Mrs C complained:
- There has been a lack of activities organised; individually for her father or group activities to improve social interactions / a sense of community. Instead, he was simply kept in front of the TV in the morning and in his bed in the afternoon.
- The home failed to have a sufficient understanding of issues around (her father’s lack of) capacity.
- The home failed to provide the physiotherapy support her father needed (arm support and exercises).
- The home failed to ensure that his father’s first two bedrooms were in an appropriate / reasonable state, before he moved into them, and soon after.
- The home’s decision to ban her was wrong
- The home failed to address the mental health / wellbeing issues her father had. It should have asked the GP to refer him to the Mental Health Team for a Mental Health Assessment.
- The staff did not treat her father with dignity and respect. They regularly called him by a nickname, instead of his first name, even after she had made a complaint about this.
- The home failed to ensure her father was able to use / access the call bell when able and needed.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the information I received from Mrs C and the Council about the care Mr F received during 2020. I shared a copy of my draft decision statement with Mrs C and the Council and considered any comments I received, before I made my final decision.
What I found
Relevant legislation and guidance
- 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. We consider the 2014 Regulations and the Fundamental Standards, as well as a provider’s policies and procedures, when determining complaints about poor standards of care. The following regulations are relevant to this complaint:
- Regulation 9 (Person-centred care) says that care and treatment of service users must be appropriate, meet their needs, and reflect their preferences. As such, a care home needs to ensure, amongst others, they:
- design care or treatment with a view to achieving service users’ preferences and ensuring their needs are met; and
- make reasonable adjustments to enable the service user to receive their care or treatment.
- A sudden medical condition in 2019, resulted in Mr F’s cognition becoming severely affected. Cognition is the ability to perceive and react, process and understand, store and retrieve information, make decisions and produce appropriate responses.
- The records state that it is very difficult for him to communicate, and he could only answer basic 'yes and no' questions. It was reported that his responses were not always reliable and health and social care professionals deemed him to lack capacity regarding his care and support needs. Mr F was discharged from hospital into the nursing home at the end of February 2020.
- Mrs C has complained to the care home, the Council and the Care Quality Commission during 2020, about the care her father received at the home during that time. As such, she has persistently asked for her father to be moved to another home; an issue which is currently being dealt with through the Court of Protection.
The complaint about the lack of activities for her father
- Mrs C said there was a lack of activities organised by the home, individually for her father or group activities. Instead, she said the home simply kept him in front of the TV in the morning and in his bed in the afternoon. Mrs C said:
- Before his stroke, her father used to be a very (socially) active and sociable person in the community.
- However, in the care home, he had breakfast alone in the dining room, instead of sitting with someone else. After this, the home would put him in front of the TV in the lounge, followed by lunch in the dining room, again alone.
- He would then have a nap in his room from 1.30 to 3.30pm and staff would keep him in his bed for the rest of the day. The home failed to encourage her father to go out of his bed, and out of his bedroom, after his afternoon nap, to enable him to be around and/or interact with other people, including having dinner outside his bed(room).
- She brought many things into the home to try and improve her father's wellbeing, such as Dominoes, Connect Four, Watercolours, CD player etc, but staff did not really use them. His intervention notes only recorded one failed attempt to do one of these activities with him.
- She brought in an app that was recommended by the Speech and Language Therapist and asked staff to do this with him 20 minutes each day. However, they only did this 12 times between 21 April and 23 October 2020 (the last one being 5 June 2020).
- The home told her the only activities he has participated in was the Easter party and listening to audio reading books. Audio books is not an activity, and his language therapist said her father would not be able to understand audiobooks.
- There was no “activity coordinator” at the home and no regular programme of activities. The home’s website etc refers to activities such as bingo, board games, jigsaws, dominoes and cards. However, she has never seen anyone do these.
- A staff member had been assigned to do afternoon activities with residents at the start of lockdown. However, this failed because most residents were asleep in the afternoon. The staff member did also confirm that staff did not have time to do activities with residents in the morning.
- The complete lack of activity provision at the home meant her father had no opportunities to form connections and relationships with other residents
- Mr F is not alone at mealtimes. There are 40 residents and quite a few of them sit in the same dining room as him for breakfast and lunch.
- Afternoon activities (when Mr F generally sleeps) works for most residents. The residents get up at different times in the morning depending on their choice and needs. As such, morning activities would be disruptive as different residents would be joining and leaving at various intervals. Residents enjoy having background TV or music on in the morning.
- Most residents do not have a nap in the afternoon. The home’s activities are very popular with our residents and the majority attend and enjoy them. The home had outside entertainers visiting before and since lockdown, and staff do activities with residents.
- Staff would ask Mr F every day if he wanted to get out of bed and have his tea in the dining area with others, but he refused preferring to stay in his bedroom having his dinner watching TV. He uses his own choices which we adhere to.
- The home has tried different things, including colouring. Mr F likes audio books on a CD, and he has enjoyed listening to them. He does not like doing a lot of activities.
- Encourage Mr F to engage in daily activities in the home and offer him access to his music along with his Television and other activities on offer in the home. Any offer of activities and response to be recorded in daily logs
- Encourage Mr F to transfer out of bed after his afternoon nap around 3-4pm and encourage him to engage in activities and participate with other people in the home. Staff should monitor his engagement and degree of enjoyment and or distress.
- The home reported that Mr F really enjoys watching television in the afternoon, which it facilitates every day.
- The home was in the process of recruiting an “Activities Coordinator” and ordering some activity packs that are 1940’s themed for all residents.
- An entry in Mr F’s daily notes on 14/08/2020 state that he received a visit from SALT. The notes state that Mr F was able to engage in some of the activities provided but became frustrated and refused to engage further.
- Mr F indicated he was happy and gave a thumbs up. He also indicated he was happy with the care he receives by the staff. He appeared happy and relaxed in his environment, was engaging well with staff and at times he was affectionate with them. These observations were also recorded in subsequent visits.
- Mr F needs one to one support to maintain personal relationships and engage in social activities including leisure, cultural and spiritual activities.
- Nursing Home Staff need to ensure Mr F is kept fully informed of activities within the Home and the Community, and to encourage/support him to engage in activities of his choice.
- He enjoys playing dominoes, chess, card games, music, singing, watching TV, and reading newspapers.
- Mr F can be reluctant to engage or go into the lounge area. He does attempt to engage with residents on occasions, and also in activities, but only by his choice and his willingness to engage.
- He may refuse to get out of bed or sit in the lounge with other residents.
- I found that, with regards to activity provision, the care home failed to provide a lack of personalised care during 2020. This is fault. It was clear that Mr F wanted activities to be provided in the morning, rather than the afternoon. However, the care home failed to provide sufficient activities in the afternoon, saying most residents preferred activities in the morning. I found this was not in line with Regulation 9.
- While records show that Mr F can be reluctant to leave his bed(room) or engage in activities, there was insufficient recorded evidence to conclude staff would ask / encourage Mr F every day to get out of bed after his nap, during this time. This is fault.
- However, the IMCA recorded this improved during 2021 following the appointment of an activity coordinator.
- While Mr F does not always want to leave his bed in the afternoon or participate in an activity on offer, and he consistently indicated when asked by visiting professionals that he was happy, the above shortcomings would have had an impact on his overall wellbeing, including the extent to which his need for social interaction and relationships would have been met. As such, I found he suffered an injustice.
The complaint about the care home’s lack of understanding around capacity
- A Mental Capacity Assessment was carried out in February 2020, as part of the process of moving Mr F into a nursing home. It recorded that:
- It was difficult to assess Mr F’s level of understanding due to his inability to communicate. He was only able to answer basic questions with a yes/no response, but even this could be unreliable.
- He appeared to understand and follow basic instructions and conversations, but unable to engage with more complex decision making.
- Had not applied for a DOLS, because it felt Mr F had capacity. As an example, the care home said that he could choose what food option he wanted (saying 'yes or no') and that he knew the lyrics to old songs.
- The social worker explained the shortcomings in the care home’s reasoning and urged the care home to make a DOLS application, which the home agreed to do.
- The mental capacity assessor did not know Mr F. The care home has been able to understand him, and his verbal and non-verbal communication, through supporting him every day. As such, it felt he had capacity and could make decisions and his wants known. Therefore, although the home had been advised that Mr F lacked capacity, staff concluded he had full capacity. As such, the home did not apply for a DOLS.
- When staff asked him a question, he would answer. He understood what was said to him, although he may not have been able to answer to everything.
- Professionals found that it was more difficult than usual to determine to what extent Mr F had capacity to make decisions, due to his limited ability to communicate. However, the views of all the independent health and social care professionals involved in Mr F’s care (psychiatrist; best interests assessor; speech and language therapist; discharge nurse and social worker and his social worker) was that he did not have capacity to make more complex reasoned decisions, such as where he should live.
- A mental capacity assessment carried out in February 2020 concluded that Mr F did not have capacity to decide where he should live. Based on the information available, the Council’s view is the care home failed to request a DOLS assessment in February 2020. I agree with this, which was fault. As such, there was a four-month delay by the care home in requestion a DOLS assessment for Mr F.
- The DOLS assessment resulted in several conditions that the care home should do, to improve Mr F’s support and life at the home. These were subsequently monitored via follow up visits and have resulted in improvements in Mr F’s care. As such, I found that if the care home had referred Mr F earlier for a DOLS, these improvements would have taken place earlier. As such, the delay resulted in an injustice to Mr F.
- Considering the reasons provided by the care home as to why it did not apply for a DOLS in February 2020, the Council and those involved in the DOLS assessment found there were shortcomings in the home’s understanding of issues in relation to capacity. Staff have since received training around mental capacity.
The complaint about the alleged lack of addressing Mr F’s mental health issues
- Mrs C said her father was often upset and crying during visits. She said four care workers, in addition to a nurse at the home, told her that he was regularly distressed and depressed. As such, Mrs C said the care home should have asked the GP to refer him to the Mental Health Team for a Mental Health Assessment.
- In response, the home has said that it observed Mr F’s mood each day, and it had not found him to be distressed. It said Mr F could get tearful out of frustration when he was trying to express himself and he initially cannot be understood. Mr F has been very happy with the home.
- Mrs C called the social worker in May 2020 to say again that her father was constantly crying. The social worker advised she spoke to the home about this and asked for mental health input via the GP.
- A review of Mr F’s care in July 2020, found that Mr F was low/anxious most days. Mrs C reported that her father was always tearful when she would visit, and she believed this was because he was unhappy in his current placement. He was prescribed anti-depressant medication.
- According to the records, the overall view expressed by professionals was that Mr F was frustrated due to his inability to effectively communicate, and low in mood / tearful due to the change of his circumstances after the stroke. Mr F was receiving anti-depressants for this.
- The DOLS mental capacity and health assessor recorded that:
- Mr F was clearly frustrated and distressed at times, and he was tearful during the assessment. The home manager said Mr F was tearful and frustrated in the home.
- Mr F had been prescribed an anti-depressant, which should be reviewed by a psychiatrist as it may be there were better evidence-based options for the post-stroke depression which Mr F was almost certainly experiencing.
- Mr F was on anti-depressant medication as he was low in mood following his stroke, which resulted in him having difficulties communicating and him no longer being able to live with his family.
- When Mrs C continuously expressed a concern, during the first half of 2020, with the home and the Council about her father’s mental wellbeing, the home should have asked the GP to visit him to review him and his medication. This did not happen until October 2020, which was fault. The review in 2020 did not ultimately result in a change of his medication. As such, while it would have been distressing to Mrs C to wait this long, the delay did not result in an injustice to Mr F.
- I did not find fault with the care home initially asking the GP to review Mr F’s medication. His medication was eventually reviewed by a Psychiatrist in November 2020, which did not result in a change in the medication he received.
The complaint about the lack of physiotherapy support
- Mrs C said that:
- Her father’s arm needed to be supported with a pillow. However, despite the physiotherapist’s instructions, and Mrs C repeatedly reminding the home, Mr F’s affected arm was often not supported when she visited, including five times during three months in mid-2020.
- The physiotherapist had also said in July 2020 that it would be very beneficial for Mr F to do exercises every day and had given an exercise sheet to staff. The exercises were meant to keep her father's muscles loose and comfortable. However, the home told the social worker in November 2020, that they had no knowledge of the sheet and there was no sheet available.
- Staff would position a pillow under Mr F’s arm every day. However, he would pull it out, throw it on the floor and decline to have it put under his arm again, even when staff explained what the pillow was for. This was also observed by the physiotherapist. “The physio observed Mr F removing the pillow and he refused to let her put it back under his arm. The Physio ordered splints and visited to fit it and check it was suitable. Mr F tolerated this for approximately half an hour then he undid the splint and threw it on the floor. The Physio observed this and advised to keep attempting to fit the splint each morning”.
- The home did not fail with providing physiotherapy support; Mr F would not engage in it and was discharged.
- The exercises were about moving his arms and legs and this was what they were doing with him when he was getting dressed.
- The Physiotherapy team discharged Mr F in September 2020 and gave exercise sheets for staff to carry out daily. I have not been provided with any (daily care) records that show staff subsequently tried this regularly. The Physiotherapy team said the exercises caused Mr F distress and he would often not engage with them. It said it was therefore understandable the care home would not persist trying to do the exercises.
- The team said it also provided splints to Mr F, but he would not wear them. Mr F’s physiotherapist said a cushion wouldn't provide any physical benefits to the use of Mr F’s arm and he would throw it out.
- The Physiotherapist team and the care home both reported that Mr F did not want to engage with exercises and did not want to use the splint or have a cushion under his arm. There was a lack of evidence of staff initially trying to do the exercises, which is fault. However, I found this would not have resulted in a significant injustice to him as he did not usually want to engage.
The complaint about the condition of the first two bedrooms
- Mrs C says the home failed to ensure that his father’s first two bedrooms were in an appropriate / reasonable state, before he moved in, and soon after. Mrs C says that:
- As her father was not an emergency last-minute admission, the care home should have ensured her father’s first bedroom was in an appropriate state. Instead, the sink was broken, and the bedroom was not repainted.
- A cupboard, intended for her father’s possessions, was full of items presumably belonging to the care home. They were there when her father moved in and were not emptied after he moved in.
- Mr F was not an emergency admission. However, he was ready for discharge from hospital and the hospital and family members wanted him to move out as soon as possible. As such, the home didn’t have opportunity to refurbish the room.
- The home made the Discharge Social Worker aware that this was the only room available, and that Mr F would be moved as soon as another room became free. As such, the first bedroom was only ever intended as a short-term temporary measure. Mr F only resided in the first bedroom for 6 days. The home used one of the cupboards for storage, leaving a wardrobe on the other side for Mr F’s belongings.
- Mr F’s walls were covered in photographs of his family, including many photographs of his grandchildren. There were also letters written from family and friends and some oil paintings that have been placed on the walls.
- However, there were a couple of minor observations such as a missing door handle on a cupboard and a water type stain on the ceiling.
- The first bedroom was only meant to be temporary and facilitated a quick discharge from hospital which all stakeholders wanted, except Mrs C. Mrs C says she wanted her father to go into a different home, which however did not have a vacancy at the time. Although it was not in a sufficiently appropriate decorative state and the sink was broken, Mr F only stayed there for six days so there was no fault or significant injustice.
- I have seen photos of the second bedroom and agree with Mrs C it was not well presented. The care home said it could not do any works needed before Mr F moved in, due to lockdown. However, Mr F moved in before lockdown started. The presentation of the room would have had some impact on his quality of life at the home. However, this was subsequently addressed after Mr F moved to another (third) room.
The complaint about the home’s decision to ban Mrs C:
- Mrs C said:
- She received a phone call on 6 October 2020 from the care provider. Following this, she received a text message to say the care home had banned her from visiting. The text did not explain the reason why.
- She received a letter two days later from the home, which also did not explain the reasons for her ban. Furthermore, it also banned the husband from visiting, without giving a reason.
- The home lifted the ban on 9 October, again without explaining why.
- The care home failed to follow an appropriate process before it decided to ban Mrs C and her husband from visiting. This is partially, because it does not have a policy / process on banning visitors that sets out what steps the care home should follow, and what it should consider, before issuing a ban. This is fault.
- The CQC has produced guidance for care homes around banning visitors. The care home did not follow this, as the care home did not:
- First warn Mrs C about the specific (alleged) behaviour that should stop.
- Discuss its concern first with the Council’s safeguarding team, before deciding to ban Mrs C.
- Consider any less restrictive measures for Mrs C, rather than banning her, for instance having visits away from other residents etc.
The complaint about ‘name calling’
- Mrs C said that staff regularly called her father by a nickname, instead of his name, even after she had made a complaint about this. As such, Mrs C says staff did not treat her father with dignity and respect.
- The care home manager said these comments were banter. The manager said every individual in the home has a different kind of banter and Mr F likes to be called by the nickname.
- When asked by the advocate and social worker, Mr F would say he preferred to be called by his name, rather than the nickname.
- Other than this, observations from the advocate were generally very positive about the interaction and connection between staff and Mr F. The advocate had no concerns following her visits, observed that staff was very empathic and affectionate towards Mr F and he got along well with staff.
- The care home failed to clarify with Mr F how he wanted staff to call him. I found this is fault and not in line with Regulation 10 (Dignity and Respect). Mr F indicated to the advocate and social worker that he preferred to be addressed by his name. Overall, it was reported by several professionals that Mr F had a good relationship with his care workers.
The complaint about the call bell
- Mrs C said the home failed to ensure her father was able to use / access the call bell when able and needed.
- According to information provided by the Council, the call bell was out of Mr F’s reach on most occasions when Mr F’s social worker or advocate would visit him, despite this being pointed out on each occasion.
- The care home said that Mr F would usually shout out for staff to come, rather than use the call bell, and there was always staff close by and checking in.
- I found there was fault by the care home in not ensuring the call bell was always in reach for Mr F to use, when he wanted. It is difficult to determine exactly to what extend this happened and to what extent had an impact on the care he received.
- 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 some fault with the actions of the care home, I have made recommendations to the Council.
- I recommended that, within four weeks of my decision, the Council should:
- Apologise to Mr F and Mrs C for the faults identified above and the distress these have caused them. It should also pay £1,800 to Mr F and £400 to Mrs C.
- Work with the care home to address any of the above shortcomings that are still an issue today, according to the Council.
- For reasons explained above, I have upheld Mrs C’s complaint.
- I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.
Investigator's decision on behalf of the Ombudsman