The Ombudsman's final decision:
Summary: the complainant Mrs X complained the Care Provider failed to give due notice of ending her father’s care or of its concerns about his increasing care needs. The Care Provider said it acted in the client’s best interests and arranged a meeting which the family did not attend. We found the Care Provider caused an injustice by failing to set out clear notice arrangements and through not raising its significant concerns. The Care Provider has agreed our remedy.
- The complainant I shall refer to as Mrs X complains the Care Provider failed to give due notice of its intention to end her father’s, Mr Y’s, care contract before he entered hospital with a chest infection. Mrs X says the family only learned of the intention to end the contract when the Care Provider refused to accept Mr Y’s return to its care home on his discharge from hospital.
- Mrs X says the Care Provider did not tell the family of its increasing struggles in caring for Mr Y or about allegations he had hit staff. Had the family known Mrs X says they would have discussed a move and could have planned it for Mr Y.
- Mrs X says this caused the family and Mr Y significant distress and led to Mr Y spending longer in hospital while the family sought a suitable long term nursing placement. Mrs X says with proper notice they could have avoided this distress and lengthy hospital stay.
The Ombudsman’s role and powers
- We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- In considering this complaint I have:
- Contacted Mrs X and read the information presented with her complaint;
- Put enquiries to the Care Provider and reviewed its response;
- Researched the relevant law, policy, and guidance.
What I found
- Care providers and residents or their families enter contracts to provide care services which should set out clear procedures for ending the contract.
- The strict interpretation of terms of a contract is a matter for the courts. However, the Ombudsman may consider if the terms clearly set out what is expected of the Care Provider and other people who are a party to a contract on an ordinary reading of the terms.
- The Care Provider’s contract terms say “… Ferndale Care Home will require notice of four weeks should the client move to alterative accommodation.” The terms also say “Notification in writing is required should either the client or the care home terminate the residency…”
- The Care Quality Commission (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.
- 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
- In October 2019 Mr Y moved to the Care Provider’s Ferndale Care Home, Britannia Road, Morley, Leeds LS27 0DW.
- In March 2021 the Care Provider’s visiting GP service saw Mr Y and advised the Care Provider he needed admission to hospital. The Care Provider says Mr Y had a chest infection, irregular heart rhythm, increased confusion, agitation and had recently experienced several falls. The Care Provider contacted Mr Y’s family and his daughter went with him to hospital.
- The Care Provider says that in the months before Mr Y’s admission to hospital his condition worsened. This resulted in behaviour which it says included hitting staff, threatening staff, and posing a risk to himself and other residents. The Care Provider says it arranged a meeting in March 2021 with Mr Y’s family to discuss its concerns about this decline, but they did not attend. The Care Provider says it mentioned to the family in early March 2021 Mr Y may need alternative accommodation. In the Care Provider’s view, it could not meet Mr Y’s needs because he now needed full nursing care. The Care Provider believed Mr Y met the criteria for Elderly Mentally Infirm (EMI) care which it could not provide.
- The hospital wanted to discharge Mr Y back to the care home. The Care Provider refused to accept him because it believed it could not provide the care he needed. The Care Provider contacted the local authority asking for an assessment of Mr Y’s needs and to arrange alternative accommodation.
- The Care Provider says often following a hospital admission changes to a person’s placement happen with little or no notice. The Care Provider believes the move to EMI care direct from hospital was in Mr Y’s best interests.
- The family say the Care Provider gave no warning of Mr Y’s decline in behaviour or cognitive health. With due notice of the need to move him Mrs X says the family would have found a placement without Mr Y needing to stay in hospital any longer than necessary.
- The Care Provider’s daily notes show for most of November 2020 Mr Y displayed a calm manner but on occasions would become ‘vocal’ and wandered. Records show in late November 2020 Mr Y raised his stick at staff, kicked a chair over and punched staff before falling to the floor. During December 2020 the daily records show Mr Y became more agitated and staff found him restlessly going from room to room. The records say Mr Y shouted at staff and raised his stick. In mid-December 2020 the Community Psychiatric Nurse told staff to begin a behaviour chart for Mr Y so staff could monitor and assess any changes. The frequency of Mr Y’s wandering at night and vocal outbursts increased according to the records. Reassurance and medication appeared less successful in helping Mr Y to calm down. The daily notes record family visits but not whether staff raised concerns with the family during those visits.
- At the end of December 2020, the Care Provider called paramedics due to Mr Y’s breathing problems. They did not admit him to hospital. By February 2021 Mr Y had not improved and the records show he continued to wander, sometimes into other residents’ rooms. Mr Y received a visit from an Occupational Therapist who liaised with Mr Y’s GP. Records show an increase in agitated behaviour in March 2021. On 8 March 2021 the records show the Care Provider’s manager spoke with Mr Y’s daughter about his recent falls and behavioural concerns. On 12 March 2021 Mr Y’s GP referred him for EMI nursing care because of the increased agitation and aggression. Mr Y went into hospital on 16 March 2021.
Analysis – did the Care Provider cause an injustice?
- The Care Provider’s records show from November 2020 it became increasingly concerned it could not offer the care it assessed Mr Y now needed. After going into hospital with a chest infection in March 2021 Mr Y moved from hospital to EMI care. It is not for me to decide whether Mr Y needed to move but to consider how the Care Provider gave notice of its concerns and of its decision to end the care contract.
- The Care Provider clearly believed by March 2021 it could not provide the care Mr Y needed. Therefore, it needed to consider ending the contract of care. It is clear the Care Provider believed this would be in Mr Y’s best interests.
- The Care Provider should have an end of care contract procedure. The contract should clearly set out the timing and length of notice it should give to clients when ending the care contract. Clients and their families should know what to expect should the Care Provider decide to end the care contract.
- The contract says notice from either party should be in writing. It only sets a time for the client to give notice of four weeks, the Care Provider is not under the same duty. That means it lacks clarity over what notice a client may expect.
- Clients and their families need to know when a care provider cannot provide the care they need. Care providers should alert them to any concerns about meeting those needs without delay. There will be occasions when giving four weeks’ notice is not possible. Here however, it was. Given the increasing concerns the Care Provider had I would expect it to:
- Raise in writing (which includes emails) and through telephone calls or face to face meeting concerns about providing the care now needed by Mr Y;
- Set out again in writing and in calls or meetings the client’s choices and how and when the care contract would end;
- Consider by February 2021 following up those concerns by giving notice or at least telling the family it intended to give notice.
- To address the injustice caused the Care Provider agrees to within four weeks of my final decision:
- Apologise in writing to Mrs X as representative of Mr Y and his family;
- Pay Mrs X on behalf of Mr Y and his family £300 in recognition of the avoidable distress caused by the lack of notice;
- Review its contract terms and conditions by ensuring these set out the end of care contract procedure and the notice the Care Provider must give.
In completing my investigation, I find the Care Provider caused injustice for which it has agreed a suitable remedy.
Investigator's decision on behalf of the Ombudsman