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Durham County Council (21 002 373)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 07 Dec 2021

The Ombudsman's final decision:

Summary: We upheld Mrs X’s complaint about her late father’s care in a council-funded care home. The failings in care were neglect. The Council will apologise, make a symbolic payment and take action described in this statement to minimise the risk of recurrence.

The complaint

  1. Mrs X complained about two incidents at Lindisfarne Care Home (the Care Home) (run by Gainsford Care Homes Ltd) which led to her late father Mr Y sustaining serious injuries after being assaulted by another resident. Durham County Council (the Council) arranged and funded Mr Y’s care.
  2. Mrs X said the incidents caused avoidable distress.

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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. We are investigating Mrs X’s complaint because the Council funded Mr Y’s care under its duty under the Mental Health Act 1983 to arrange aftercare.
  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. 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 considered Mrs X’s complaint, the Care Home’s response to the complaint and documents described later in this statement
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. When investigating complaints about council-funded care placements, the Ombudsman considers the 2014 Regulations when determining complaints about poor standards of care.
  2. Regulation 13(1) of the 2014 Regulations requires care providers to have effective systems to prevent abuse.
  3. Regulation 17 of the 2014 Regulations requires care providers to keep accurate, complete and contemporaneous records of care and treatment.
  4. Regulation 20 of the 2014 Regulations (the duty of candour) requires care providers to be open and transparent when things have gone wrong. As soon as the care provider becomes aware of a safety incident, it must tell the person or their relative; provide reasonable support, advise them of any further enquiries, keep a written record and apologise.
  5. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
  6. Actions a council may take under section 42 of the Care Act include a full safeguarding investigation where abuse or neglect is suspected and further information is needed to determine whether any action needs to be taken.

What happened

  1. The complaint is about two incidents involving Mr Y and another resident, Mr Z which happened within an hour of each other on the same day in March 2021.
  2. The nurse on duty made a safeguarding referral to the Council’s safeguarding team. The record of the nurse’s call to the Council suggested only one incident was initially reported. A safeguarding officer spoke to Mrs X who told her what the Care Home and hospital had told her. Mrs X said the medical notes from the hospital said Mr Y had been punched in the stomach.
  3. The Council opened a safeguarding investigation into the incidents. There was a safeguarding strategy meeting attended by a council safeguarding officer, a nurse from the hospital and staff from the Care Home. The minutes said:
    • Mr Z had very poor short-term memory and psychotic symptoms. He became confused and agitated in the afternoon
    • Mr Z had one-to-one support for 12 hours a day (waking hours) since the incidents. He was known to show agitation but had no previous history of physical incidents with residents or staff.
    • Staff recorded one incident when two should have been recorded
    • The first incident was witnessed and happened very fast when two members of staff were leaving another resident’s room
    • Mr Y was clinically stable in hospital. He had internal bleeding. Surgery was not an option
    • Further investigation was needed by the Care Home.
  4. The Care Home completed an investigation report. This included a summary of the witness statements and incident reports completed by staff who were on duty during the incidents. I have seen copies of those witness statements and incident reports. I have also seen copies of Mr Z’s care records including some of his care plans.
  5. I have summarised the contents of the Care Home’s investigation report below:
    • The first incident was witnessed. The other resident (Mr Z) hit Mr Y on the side of his head causing him to lose his balance, grabbing a care worker but falling against the wall and sliding to the floor. The care worker pressed the emergency buzzer, the nurse on duty responded. The accident report noted redness to the right ear and no other injuries. Both residents were escorted away from one another, and Mr Z went back to his room. The nurse reported that Mr Y had got up and was mobile. She tried to examine him, but he walked away, he was not bleeding. The care worker monitored Mr Y.
    • The nurse went to assess Mr Z and gave him a sedative, he was in his room playing music with no signs of aggression.
    • A senior care worker asked Mr Y to help with the dishes in the lounge to distract him from the bedrooms; he went into the lounge and the senior felt he was calm. 10 minutes later, another resident was incontinent and so the senior care worker went to assist that resident. Mr Y remained in the lounge. Another care worker was present (but was assisting a different resident and did not see what happened next.)
    • Mr Y had a fall whereby Mr Z was standing close by. The care worker who was in the lounge did not witness the fall, she had her back to Mr Y, but heard a thud and when she turned around, he was lying on the floor with Mr Z standing near him. The care worker called for the senior care worker. The senior care worker went straight to assist Mr Y. Mr Z said he had pushed Mr Y because Mr Y had grabbed hold of his wrist and this frustrated him. Mr Z was asked to move away and he did so.
    • Staff suspected Mr Y had a serious injury (as he couldn’t stand up and was showing signs of pain, was trying to stand up but could not) and called an ambulance straight away and it arrived within 15 minutes. It was hard for the ambulance crew to examine Mr Y as he was agitated. It was later confirmed Mr Y had a broken left hip, blood in his abdomen, bruising and swelling to his left elbow and a skin tear. He also had an injury to his kidney and liver and was dehydrated.
    • Mr Z was supervised by a care worker one-to-one following the (second) incident.
    • The care records were with the police.
    • Mr Y had dementia and challenging behaviour. He had a history of walking into other residents’ rooms and invading their personal space. Asking him not to do this made things worse.
    • There was one previous unwitnessed fall.
    • Mr Y was showing signs of dehydration on admission to hospital. There were no concerns about his fluid intake though. His average intake was over 1500 ml a day and on the day of admission he had had 1450.
    • There had been no previous incidents between Mr Y and Mr Z
    • Mr Z had a history of agitation. He came to the Care Home in April 2020. Before the incident, there was no record of aggression towards other residents.
    • The home was appropriately staffed at the time
    • Records were varied in quality and should have been more detailed and accurate regarding timing.
    • 15-minute observation charts should have been completed for each of them following the first altercation
    • The second incident was not witnessed but it was assumed Mr Z had pushed Mr Y because the latter had grabbed him
    • The senior care worker who was monitoring Mr Y had left to support another resident who needed help only a short distance away. She should have sought help from another remember of staff given both residents were mobile
  6. The report described some actions that the Care Home intended to take:
    • Remind staff to allocate support according to need, take resident to another area of the home and closely observe
    • Group supervision to reflect on the incidents
    • Staff training on completing documents.
  7. Mr Y moved to a different care home at the start of April 2021. He has since died.
  8. The Care Home’s response to the complaint explained what had happened. It said that staff took appropriate action and followed policies and procedures, but record keeping was not as good as it should have been.
  9. The Council’s safeguarding closure record said:

‘Outcome: the allegation of neglect is substantiated. Staff failed to protect Mr Y by failing to ensure Mr Z was closely monitored following the first incident. While staff did administer lorazepam [a sedative] and sit with Mr Z for around ten to 15 minutes playing his favourite music, and engaging him in conversation, close observations should have continued throughout the evening. Copies of reports to be shared with CQC and family.’

Findings

  1. I uphold the complaint.
  2. Care to Mr Y was not in line with Regulations 13 and 17 of the 2014 Regulations. The Care Home, which acted for the Council did not provide safe care and its record keeping and reporting was inadequate. The Council accepted as an outcome to the safeguarding investigation that Mr Z should have had close observation for the evening after the first incident to protect Mr Y from any further instances of aggression. The Council found neglect by the Care Home.
  3. The Care Home’s complaint response did not identify that further supervision of Mr Y should have happened, nor did its internal investigation. The response to the complaint was inadequate and I consider the Care Home failed to act in line with the duty of candour (Regulation 20 of the 2014 Regulations). Its neglect of Mr Y caused a further injury and it failed to be open about this when responding to Mrs X’s complaint.

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Agreed action

  1. 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 Care Home, I have made recommendations to the Council.
  2. The Council will:
    • Apologise for the fault identified in this statement
    • Make a payment of £1000 to reflect the family’s avoidable distress. I recognise this is higher than we usually suggest in our published Guidance on Remedies, but I have taken into account the exceptional circumstances and that the Care Home, which acted for the Council, failed to take steps to ensure the risk to Mr Y of further harm was minimised.
    • Ensure the Care Home reviews and revises relevant procedures so that in future a resident receives close observation for an appropriate period of time following incidents of the nature described in this statement.
  3. The Council will complete the above actions within one month of my final decision. I will require evidence of compliance.

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Final decision

  1. I upheld Mrs X’s complaint about her late father’s care in a council-funded care home. The failings in care were neglect. The Council will apologise, make a symbolic payment and take action described in this statement to minimise the risk of recurrence.
  2. I have completed the investigation.

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Parts of the complaint that I did not investigate

  1. Ms X also complained about Mr Y losing weight. I did not investigate that complaint because she did not raise it with the Council or Care Home. Ms X needs to complain to the Council first before we will investigate.

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Investigator's decision on behalf of the Ombudsman

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