Summary: The Council commissioned Mr Y’s care so it is at fault for the failings in that care. It is also at fault for the way it dealt with Ms X’s complaint about this.

The complaint

1. Ms X complains about the quality of care provided to her father, Mr Y, at a residential care home. The placement was arranged and funded by the Council.
2. Ms X also complains about the way the care home managed a friendship between Mr Y and another resident.
3. Ms X says the care home were insensitive in its communication with Mrs Y about the friendship between Mr Y and another resident.

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What I have investigated

4. I am investigating points 1 and 3 above. I have not investigated point 2. I have explained the reasons for this at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. We investigate complaints about councils and certain other bodies. Where a care provider is providing services on behalf of a council, we can investigate complaints about the actions of the provider. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

9. I have:

• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the care home, and between Ms X and the Council;
• considered the Council’s response to the complaint;
• considered relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

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. Regulation 9 Person Centred Care says Care Provider must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate and meets their needs. Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment.
12. Regulation 12 Safe Care & Treatment says people must not be given unsafe care or treatment or be put at risk of harm that could be avoided. Care Providers must assess the risks to a person’s health and safety during any care or treatment and make sure care staff have the qualifications, competence, skills and experience to keep people safe.
13. Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete, and contemporaneous records of care and treatment.
14. The Mental Capacity Act 2005 (the Act) is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
15. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
16. The Deprivation of Liberty Safeguard (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to gain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice.

Key facts

17. This is not meant to be an account of everything that happened. I have focused only on the material issues in the complaint.
18. Mr Y has dementia. An assessment of his needs concluded he needed residential care. The Council commissioned a placement for Mr Y at Branksome Heights residential care home (the care home) on 27 April 2020. Mr Y left in September 2020. Unfortunately, during Mr Y’s stay lockdown was in force and there were government restrictions on visiting care homes. Mr Y’s wife, Mrs Y, remained in the family home.
19. The care home offered residents and families video calls, telephone calls and socially distanced garden visits from June 2020. It also provided families with regular updates.
20. I have had sight of Mr Y’s care and support plan. It records his deteriorating cognition and that he experienced confusion and at time times could be delusional. He had a history of falls and was deemed to be at risk of further falls. He required full support in all areas of day-to-day living and supervision through the night.
21. Because Mr Y was unable to consent to his placement the Care Provider made a referral to the to the Council’s DoLS team on 20 April 2020.

Falls

22. During Mr Y’s stay, the care home completed two accident reports, one on 17 May 2020, when Mr Y was found on the floor in front of his chair, and another on 21 July 2020, when he was again found on the floor. Ms X says the family were not informed about either incident, and when they did find out, the account of what happened changed. Ms X says a senior carer informed the family Mr Y had been picked up from the floor, but the family were later told Mr Y had fallen backwards on his bed. Ms X says Mr Y said he had fallen and was helped up by someone he believed to be his wife. Ms X says the family only discovered there had been more than one fall during this investigation.
23. The Care Provider confirms the family were not informed and says this was because Mr Y had no need of first aid and had not sustained any injuries. It says, on reflection it should have informed the family at the time, irrespective of whether Mr Y sustained any injury.

Shoulder issue

24. During a socially distanced visit on 21 June 2020 Mr Y was clutching his shoulder and appeared to be in pain. This was 12 weeks after the first fall and 2 weeks prior to the second fall.
25. Mrs Y requested the care home contact a GP immediately. When this did not happen she followed up with two further requests. Both Ms X and Mrs Y say it was obvious Mr Y was in pain from the way in he was holding himself, and they do not understand why this went unnoticed, and why the care home did not act on their initial request for a GP. Ms X says Mr Y said that the carers had hurt him, but not intentionally.
26. The Care Provider says there was no GP visits to the care home during lockdown, so it contacted the GP surgery via email on 8 July 2020. I have had sight of the email. It reports Mr Y to be complaining of pain and stiffness in his left shoulder and asks for a prescription for a pain-relieving gel. It said it would then monitor the situation. The care home sent another email to the GP on 25 July 2020 asking for an urgent repeat prescription of pain-relieving gel.
27. In its response to my initial enquiry, the Care Provider said “Mrs Y was informed that the shoulder issue was already in hand as it was a pre-existing condition and DIFLOFENAC gel was prescribed”. However, there is no evidence of this in Mr Y’s assessment or care plan. I asked the Care Provider to clarify this. It responded saying, “There were no shoulder injuries recorded so we cannot know for certain if it was a pre-existing injury or wear and tear to the shoulder join”.
28. I understand an MRI scan undertaken after Mr Y left the care home, this confirmed he had a rotator cuff injury. This condition causes significant pain.

Swollen Hand

29. The family reported Mr Y had a swollen hand on 13 August 2020. The Care Provider confirms Mr Y’s hand was swollen, and says it was due to arthritis and that he had not complained of pain.

Clothing

30. Ms X says Mr Y was dressed in someone else’s clothes and on one occasion he was wearing only a vest during a skype call with the family. The family complained to the care home. The Care Provider acknowledges there was an occasion when Mr Y wore another resident’s clothes. It said a carer apologised at the time and the Care Provider reiterated the apology to the Ombudsman. It also confirmed Mr Y was dressed only in a vest during a skype call, and said it was a hot day and that Mr Y had refused to wear a shirt. It did not deem this inappropriate as Mr Y was in his own room.

Communication with Mrs Y & Ms X

31. During Mr Y’s stay he believed another female resident to be his wife. The care home informed the Council. The Council confirms this and says it had no concerns about Mr Y’s wellbeing, or that of the female resident.
32. Ms X says the way the care home communicated the situation to Mrs Y was insensitive and caused her distress.
33. The Care Provider confirms Mrs Y was told informally and it acknowledges it was not the best way to share such sensitive information, and that it should have dealt with it in a more formal and compassionate way. It has since arranged training on communication and sharing difficult information to ensure such matters are dealt with sensitively and that emotional support is available if needed.
34. Ms X says from the outset of Mr Y’s stay she was the point of contact. Three months later (August 2021) she received an email from the Care Provider to say it would not discuss matters without Mrs Y’s written authorisation. Mrs Y provided authorisation the same day. The Care Provider acknowledges there was an unexplained delay in seeking Mrs Y’s authorisation for Ms X to act on her behalf.

Records

35. Ms X says the care home refused to provide Mrs Y with copies of Mr Y’s care plan/care records, citing General Data Protection Data (GDPR). Mrs Y confirms this in a letter to the Council. She said, she and Ms X were told during a socially distanced visit that they could not have the records.
36. In response to my enquiries, the Care Provider refuted this claim. It said Ms X requested some specific care notes, which it printed out for her to collect. When Ms X arrived to collect the notes, it asked her to wait whilst it checked the notes to ensure there was no third-party information included. It says Ms X then became ‘incredibly upset’. The Care Provider said its complaint response failed to explain this properly.
37. Mrs Y informed the Council and said she could not understand why the Care Provider had refused her the records, that the only thing that would fall under GDPR would be the names of the carers and these could be redacted.
38. In the Care Provider’s complaint response, it said care staff had been willing to provide Mr Y’s family with verbal updates of his care, but said “…under GDPR families had no right to access information and are not entitled to be provided with hard copies of care plans ect, unless they have Power of Attorney, in this case, for Health and Welfare”.

Deprivation of Liberty

39. Ms X says the care home attempted to block Mr Y’s return home by making an application to the Council for a Deprivation of Liberty Safeguard (DoLS).
40. The Council received a referral from the care home for a DoLS authorisation on 30 April 2020. It was triaged the same day and deemed to be medium priority. A review date was set for one month later, after Mr Y’s isolation for Covid 19 had ended. The review was completed on 26 May 2020. At the time Mr Y was reported to be settled and a two-month follow-up was arranged.
41. Ms X contacted the Council on 28 July 2020 to raise concerns about Mr Y’s wellbeing and to say the family wanted him to return home. The Council reviewed the DoLs situation on 30 July 2020. An officer was then allocated to assess Mr Y’s capacity to make decisions in relation to his care needs and about where he should live. The assessment was completed on 25 August 2020. It concluded Mr Y lacked insight into his care needs and that he lacked capacity to make informed decisions about where he should live. The assessor noted Mr Y’s expressed wish to return home and concluded he was deprived of his liberty. A DoLS was authorised on 25 August 2020 with recommendations for further assessment with a view to Mr Y returning home. Ms X says the family were not informed about the DoLS authorisations.
42. Mrs Y wrote to the Council on 16 August 2020 expressing her concern about Mr Y and said she wanted him to return home and that in hindsight the placement should have been on a respite basis, not permanent.
43. Following a further assessment, and a home visit by an occupational therapist, Mr Y returned home on 2 September 2020.

Mr Y’s discharge home

44. Ms X says Mr Y was discharged home in a very poor state. She says he had diarrhoea and his clothes were soiled, his legs were swollen and was in extreme pain with his shoulder. She says overall, his hygiene was poor as was that of his belongings.

Complaints and complaint responses

45. Ms X submitted two formal complaints to the Care Provider, the first on 19 August 2020 and a second complaint about matters in paragraph 34 on 10 September 2020. I note in the first complaint Ms X says she contacted the Council and was advised to submit a complaint directly to the Care Provider.
46. Ms X received two complaint responses directly from the Care Provider, on 15 September 2020 and 1 October 2020.
47. The initial complaint response addresses each point of the complaint. The author, a senior manager, acknowledged Mrs Y had been informed that Mr Y believed another resident was his wife in an informal way, and that this should have been done with compassion and in a more formal way. She said there were no records which confirmed Mr Y had fallen, but care staff had confirmed he had stood, staggered backwards, and fallen onto his bed. In respect of Mr Y’s painful shoulder she said, it was reported Mr Y had a frozen shoulder, and this had been reviewed with the GP. She went on to say Mr Y’s swollen hand could have been a result of his shoulder issue.
48. An apology was offered in respect of Mr Y’s dirty fingernails. The author said this had been addressed with all staff.
49. The manager concluded by setting out the lessons learnt, and actions implemented. All care staff would receive training in dignity in care and basic communication amongst team members. A survey would be carried out to identify ‘areas of shortfall’, and that “…all staff would be reminded of the importance of documenting every event”.

Analysis

50. The Care Provider acted on behalf of the Council, so we consider the Council responsible for any fault.
51. Going into a care home during the pandemic presented real difficulties for families and Care Providers alike. People entering care homes did so without their relatives present which created untold stress and distress for all concerned, particularly for a person with dementia.
52. In this case there were numerous issues which Mr Y and the family had to deal with. Some of which the Care Provider dealt with appropriately, and some it did not.
53. The Care Provider was not at fault for submitting a DoLS referral to the Council in April 2020. Someone is said to be deprived of their liberty if they lack capacity to consent to a care placement and they are under continuous supervision and control and are not free to leave. Where a care home believes the arrangements for a person may amount to a deprivation of liberty, they must apply to the local authority (the ‘supervisory body’) for an authorisation of that deprivation.
54. There is no fault by the Council in the way it conducted mental capacity assessments of Mr Y. However, I have seen no evidence that the family were properly informed about the DoLS process or included in a Best Interest decision. This is fault by the Council.
55. The Care Provider acknowledges it failed to properly record falls. This is not in accordance with Regulation 17 of CQC’s Fundamental Standards. The conflicting information Mr Y’s family were given about the nature and circumstances of the fall is of concern.
56. I also have concerns about the way the Care Provider dealt with Mr Y’s shoulder injury, and the subsequent conflicting information it provided to this office about this.
57. The Care Provider failed to act at the point Mrs Y noticed Mr Y was in pain, it should have responded to her request for a GP immediately. Its failure to do so prolonged the pain Mr Y was experiencing. Whilst I understand securing a GP visit was difficult during lockdown as GP’s were advised only to carry out essential visits, the Care Provider failed to take appropriate action when Mr Y’s pain continued. It should have sought an X-ray of Mr Y’s shoulder, rather than a repeat prescription of pain-relieving gel.
58. The Care Provider has given numerous explanations about the cause of Mr Y’s painful shoulder, none of which were verified by a medical professional. In response to my initial enquiries, it said the shoulder issue was ‘in hand’ and that it was a pre-existing condition. When asked it to explain this in more detail it acknowledged it had no evidence to support its claim. It said Mr Y had a frozen shoulder. The basis of this diagnosis is unclear, given Mr Y did not see a GP or undergo any type of examination/investigation during his stay at the care home.
59. An MRI scan undertaken after Mr Y left the care home showed him to have a serious rotator cuff injury which would have caused significant pain. On the balance of probability, it is more likely than not that this was the cause of Mr Y’s shoulder pain during his stay at the care home. Such an injury is significant and usually results from poor manual handling.
60. The Care Provider’s explanation about the cause of Mr Y’s swollen hand is also contradictory. It initially said the swelling was due to arthritis. I have seen no evidence a medical professional confirmed this. Given it was on the same side as Mr Y’s painful shoulder it is possible the two were related. Rotator cuff injuries can also affect the hand.
61. I note the Care Provider acknowledged that Mr Y was wearing another resident’s clothes and apologised, as such I have no further comment about this.
62. The Care Provider also acknowledged it failed to communicate with Mrs Y in a sensitive way about Mr Y’s belief that another resident was his wife. This caused Mrs Y significant distress at an already difficult time. The Care Provider has acted to address this by arranging training for care staff, so I have nothing further to add.
63. Ms X had been the point of contact for Mr Y from the outset, as such the care home accepted her as a suitable representative. I can see no good reason why it needed to seek formal authorisation from Mrs Y months later. This created unnecessary stress.
64. On the issue of Mr Y’s care records, the Care Provider again provided contradictory information. In its complaint response to Ms X it clearly says the family had no right to hard copies of care plans citing GDPR. This is incorrect and not in accordance with Regulation 9 of CQC’s Guidance on person-centred care. In response to my enquiries the Care Provider said it had offered the records to Ms X but she had become upset when told some information needed redacting. On the balance of probability, I find in favour of Ms X and uphold this aspect of the complaint. It is of concern that the Council appears not to have challenged the Care Provider on its inaccurate beliefs.
65. Although I am unable to determine Mr Y’s state of hygiene when he returned home, I note the Care provider’s apology for his dirty fingernails. Such issues show a lack of attention to basic hygiene needs.
66. In respect of the complaints Ms X submitted to the Council and the Care Provider. In the first instance Ms X complained to the Council, this was the correct course of action. The Council advised her to complain directly to the Care Provider. It should not have done so. As the commissioners of Mr Y’s care, the Council was responsible for the care provided and any complaints about it. It should have investigated the complaint and given the nature of some of the issues raised, had concerns about the overall standard of care provided to other residents.
67. The Care Provider’s initial complaint response acknowledged failure to keep proper records and that it could have dealt with Mrs Y in a more sensitive way. However, it failed to offer a sincere apology for these failings. Explanations given about Mr Y’s medical situation were based on assumption and not supported by medical evidence.
68. The second complaint response is brief. The author, a senior manager, accused Ms X of making defamatory remarks about the care home manager and she believed “…been transparent in dealing with your concerns and have shared the information with the multi-disciplinary team”. This was both inadequate and insensitive. 

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Recommended action

69. 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 have agreed recommendations with the Council.
70. Within one month of my final decision, the Council should:

• provide Ms X with a written apology for the failings highlighted above;
• make a payment of £500 for the distress caused by the failings.

71. Within two months

• discuss the findings of this complaint with the Care Provider and set out what action it has identified and implemented.

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Final decision

72. There is evidence of failings by the Care Provider and evidence of fault by the Council.
73. The above recommendations are a suitable way to settle the complaint.
74. It is on this basis; the complaint will be closed.
75. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share a copy of the final decision with CQC.

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Parts of the complaint that I did not investigate

76. I have explained to Ms X that it is not the Ombudsman’s role to investigate friendships formed between residents in a care home. In this case, the Council was aware of the friendship between Mr Y and a female resident, and it had no concerns about Mr Y’s wellbeing or that of the female resident.

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Investigator's decision on behalf of the Ombudsman